[This is a slightly edited re-post of a Slate Jurisprudence fray post. After writing the original version, I heard Rachel Maddow -- who is making a nice little side line being a guest liberal commentator on the t.v. -- mention the case on her own show last night. Cheers, Rachel.]
And, no, it's not because of Sen. Specter's attempt to get cameras in the courtroom ... well, not this time.
The District Court told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch. I [with the usual three others] respectfully dissent.
The appellate lawyers can decide if the majority was right here, though if the matter is close enough that four justices dissented I'm inclined to think equity warrants a fifth to join in on that alone, and can explain why the lawyer waited to the last minute (or see FN 9). [Souter's reasoning sounds good, but I don't claim expertise on the nuances of the issue. Still, the law simply is not so clear-cut, and the majority's position is far from compelled -- it was a judgment call.] One might think trusting the judge was his first mistake. Souter uses sarcasm:
As a member of the Federal Judiciary, I cannot help but think that reliance on our orders is reasonable. See O. Holmes, Natural Law, in Collected Legal Papers 311 (1920). I would also rest better knowing that my innocent errors will not jeopardize anyone's rights unless absolutely necessary.
The majority is of the two wrongs make a right school (putting aside that the issue is somewhat different and who knows exact particulars from a brief citation):
Just a few months ago, the Clerk, pursuant to this Court's Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late. In the letter sent to Dickson's counsel, the Clerk explained that "[w]hen the time to file a petition for a writ of certiorari in a civil case . . . has expired, the Court no longer has the power to review the petition." Letter from William K. Suter, Clerk of Court, to Ronald T. Spriggs (Dec. 28, 2006). Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson's first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion.
[Query: If they wanted to you know at least look at it to determine if the clerk was right or something, could they do it? If a law clerk says something comparable on a cert memo, is it conclusive? Sounds a bit weird.]
The Souter Four tries the other tack:
The status of §2101(c) is not before the Court in this case, so I express no opinion on whether there are sufficient reasons to treat it as jurisdictional. The Court's observation that jurisdictional treatment has had severe consequences in that context, ante, at 7, n. 4, does nothing to support an argument that jurisdictional treatment is sound, but instead merely shows that the certiorari rule, too, should be reconsidered in light of our recent clarifications of what sorts of rules should be treated as jurisdictional.
The recent EPA ruling underlined that rules of standing, namely who is able to get a hearing at the Supreme Court respecting what subjects, is not a clear-cut (strong language in the dissent notwithstanding) matter. It is a matter of judicial philosophy and interpretation, the means used often favoring certain groups.
What groups get the benefits of not just "law," but "justice," the latter in theory secured in this country, including in our courts.* "Blessings of liberty" and all that. [Preamble to Constitution] This includes not having an overly stingy view of obtaining even a judicial hearing. But, the other side has their "technicalities" too, even if the heaven's may fall, and all that. Or, a means to keep cases out of the federal courts ... Alito and Roberts favor that, right?
Anyway, those justices are just big nuts. Even when things are simply "intolerable," they remain all respectable and all. Charming really. Wouldn't mind watching a bit of that ...
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* There have been various discussions, including a year or so ago in Slate, about the idea of "law plus" in this country, a view that includes considering the courts as a place to get justice, justice that does more than follow some strict interpretation of the law. Some play in the joints. With apologies to Holmes, in fact, I really don't see things so easily separated. The Preamble to the "supreme law of the land" speaks of establishing justice. So, yes, "justice" is part of our "law."
This, especially the closing comments, underlines the point. A comment also raises a red flag: it argues in effect that state here didn't do anything that made them liable. But, the case was about the right to be heard, the hearing the place where that factual issue would be determined. All the Supremes had to do was accept the possibility the state might be liable in an area that raised federal due process concerns. The dissent on that front was right. Forgetting this helps the usual talking past each other, sound and fury signifying mostly aggravation.