Justice: Just One Vote Away From!

Here's Doc B:

In this new piece entitled "Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide," Tony Mauro highlights a point that I noticed when reading today's 5-4 decision in Bowles v. Russell: the Justices seem to be deeply divided in nearly all criminal law cases these days. Here's excerpts:

[T]he low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004....

“This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr.

In dissent, Justice David Souter was blunt and unforgiving. “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.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.

“This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.”

Though I've not formally counted, I believe the vast majority of 5-4 splits this term have been in criminal law cases and most (though not all) have been the same 5-4 composition as Bowles.

As regular readers know well, the traditional divides do not hold to true to form in the Sixth Amendment cases. The deepening divide in other areas just makes more that much more eager — and that much more uncertain — about what to expect in Rita.

And a comment from George (HT SL&P/Berman)

federalist, "suspending" the writ is too mild. This flat out revokes it.

Aaron, that makes some sense. But why no outrage over this in FN 4? Not only the SCOTUS, but a freakin' clerk can suspend/revoke the Great Writ and the government gets off on a technicality.

4The dissent minimizes this argument, stating that the Court under-stood §2101(c) as jurisdictional “in the days when we used the term imprecisely.” Post, at 4, n. 4. The dissent’s apathy is surprising be-cause if our treatment of our own jurisdiction is simply a relic of the old days, it is a relic with severe consequences. Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petitionfor 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 certiorariin a civil case . . . has expired, the Court no longer has the power toreview 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 petitionfor certiorari. The rejected certiorari petition was Dickson’s first in thisCourt, and one can only speculate as to whether denial of that petitionwould have been a foregone conclusion.

It is near impossible to understand how the government would benefit and the defendant wouldn't if statutes were unable to override the Constitution. United States v. Curry is not a habeas corpus case and no one was imprisoned. No mention of the Great Writ in Scarborough v. Pargoud either. How can those writs equate to the writ of habeas corpus?

The Oxford Companion to the Supreme Court has this:

"Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed it disapproval of multiple applications for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called "the most important human right in the Constitution," Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as "the best and only sufficient defense of personal freedom" (p.95).

What the hell happened? Now even a clerk can write and say you're a day late and a dollar short. No disrespect to any clerks, but there seems to be a great deal of disrespect for the Great Writ.