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June 14, 2007

The criminal divide on SCOTUS

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 true to form in the Sixth Amendment sentencing cases.  The deepening divide in other areas just makes me that much more eager — and that much more uncertain — about what will happen in Rita.

June 14, 2007 at 05:01 PM | Permalink

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Comments

1. While this case obviously involved a criminal, it was not a criminal case but rather a civil one (a habeas appeal). This is no minor point, for the rule at issue was a Civil Procedure rule derived from a statute, and the Court's reasoning was largely based on these two points (civil case and in a statute). In fact, since the Court referred to its own rules for jurisdiction in certiorari, and its own rules don't consider criminal case cert filing deadlines to be jurisdictional, it probably would have come out the other way had this merely been a direct criminal appeal.

2. “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.” ARGH. A statement that is totally inapposite to the instant case. The recent cases the minority points to were all unanimous. Meaning that three Justices (Scalia, Kennedy, and Thomas) also came out differently in this particular case. If Kevin Russell's statement were apposite, this case should have been 7-2, with only the new members creating a different result. But given that three others came out differently as well, the analysis cannot simply be reduced to "changed composition." It could well be due to some other factor common to the five in the majority, and yes, maybe it's an overall ideological conservatism, but that has NOTHING TO DO WITH CHANGED COMPOSITION, unless one were to (very implausibly) argue that the presence of Roberts and Alito somehow swayed the three others to come out the way they did here despite believing that their positions in the previous (unanimous) cases otherwise bound them to vote with the liberal four in this case. Argh again.

Sincerely,
Sick of Bad Legal Analysis

Posted by: bill | Jun 14, 2007 5:32:55 PM

I am not without sympathy for the murderer's position here. But let's not forget what's going on. Habeas corpus is a very intrusive remedy. Why should the state bear the burden of a federal judge not knowing the law? I know the answer--oh how important rights are etc. etc., but things like jurisdiction are conferred by statute, not judges, plus the rights of the states under our federalist structure are of constitutional moment. Why is there a categorical imperative to elevate the right of a convicted murder to a habeas appeal (a right grounded in statute) when the state has an interest grounded in the Constitutional structure. Moreover, why does the statutory right of habeas trump ideas that federal jurisdiction is created by statute?

Posted by: federalist | Jun 14, 2007 5:38:21 PM

Criminal and habeas cases have been 9 of the 15 5-4 splits so far. Have the "vast majority" of the 9 had the same composition as Bowles? No, actually, that tally comes out 5-4!

Posted by: Kent Scheidegger | Jun 14, 2007 6:01:08 PM

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it."

Two days late must be rebellion or invasion. I feel safer.

Posted by: George | Jun 14, 2007 7:27:04 PM

C'mon George, can we have a more serious answer than that?

Posted by: federalist | Jun 14, 2007 7:36:22 PM

The granting of certiorari of two below guidelines cases and setting them for argument next year instead of holding them and issuing a GVR upon deciding Rita clearly indicates that Rita has lost.

Posted by: Jacob Berlove | Jun 14, 2007 8:13:42 PM

That was semi-serious. But seriously. I don't understand how it cannot be suspended except in cases of rebellion or invasion, but can be if two days late. What about the merits of the petition? Does this rule trump the Constitution? How can any statute or rule trump the Constitution?

"Because Congress decides, within constitutional bounds,whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them. See United States v. Curry, 6 How. 106, 113."

This rule for all intents and purposes suspends habeas corpus because it is 2 days too late, so how can it be within constitutional bounds without invasion or rebellion?

Yeah, yeah, without rules there will be chaos. It is also possible to strangle the Constitution with a procedural rope.

Posted by: George | Jun 14, 2007 8:14:03 PM

I suppose I sympathize with the apparent unfairness of seeing your case go down the toilet because you relied on bad information from a judge. However, in the long run, a strict adherence to procedural rules -- and statutes in general -- offers more protection to criminals than the government. It doesn't seem that way at the Supreme Court, but as a clerk in the circuit court I saw first hand that the government was invariably the beneficiary of "wink and nod" departures from procedural rules and principles of statutory construction. Even if the Supreme Court were to adopt the position that certain rules can be "bent" or "sometimes disregarded in equity," trust me that the circuits would find some way to always bend the rule for the government and never bend it for the defendant.

Now, when I say "strict adherence" I don't mean crabbed interpretations of naturally ambiguous rules. Federal Rule of Criminal Procedure 51(b) is a good example: The rule doesn't specify how clear your objection must be to preserve it, so I think that it is appropriately to generously construe trial objections (and the Supreme Court and all the circuits have so held). But the statute in this case was crystal clear; ruling for the habeas petitioner would have been nothing less than unambiguously ignoring the rule. Nothing good comes of that in the long run.

Posted by: Aaron | Jun 14, 2007 8:17:36 PM

George--it is not "suspending" the writ of habeas corpus to hold tight to jurisdictional rules.

Posted by: federalist | Jun 14, 2007 9:26:41 PM

Jacob,

Do you not think it possible that Rita isn't coming out this term? It seems to me that the Court could easily hold that a within-Guidelines sentence *is* presumptively reasonable, but that the district court was pushed towards the Guidelines unconstitutionally by the concomittant rule that a below Guidelines sentence had to be justified by extraordinary circumstances. If this is indeed, the holding, that Rita can't come out without Claiborne/Gall/Kimbrough.

Posted by: Aaron | Jun 15, 2007 12:41:43 AM

Federalist,

I disagree with your view. I think the decision was clearly wrong on the merits. Although the time limit was codified in a statute, that does not necessarily mean it was a matter of subject-matter jurisdiction. For instance, all statutes of limitations on causes of action are time limits incorporated into statutes, and none of those are considered "subject-matter jurisdiction." They are all subject to e.g. waiver even though waiver is not expressly mentioned in the statutes. Why this particular time limit should be a matter of subject-matter jurisdiction whereas other time limits are not went unexplained by Justice Thomas. He did cite several cases which used the "mandatory and jurisdictional" language, but these were expressly repudiated by unanimous Courts in Eberhart and Kontrick.

Actually, the majority opinion did not really engage with the arguments in Bowles's brief and the amicus briefs. I think if you study the issue you will see that the argument that this is truly subject-matter jurisdiction is extremely weak. For instance, when it was enacting the statute, it was obvious that Congress was codifying a Federal Rule of Civil Procedure (the words were copied verbatim from the Federal Rule, and the legislative history -- and this was not the manipulative sort of legislative history we see today -- basically just said "codifying the federal rule"). And yet, if you believe Justice Thomas, Congress was actually turning a nonjurisdictional Federal Rule (they are by definition nonjurisdictional) into a jurisdictional federal statute.

I think it's clear this was a claim-processing rule like in Eberhart and Kontrick. And given that, I think the Court should apply traditional principles such as waiver and equity to it in extremely circumscribed situations -- such as when you rely on a federal judge's screwup. As an added bonus there were 1960s cases directly on point. Instead the Court overruled the 1960s cases to prevent a federal court from getting to the merits of a habeas appeal for which a COA had already been granted.

Honestly, I think this opinion was lawless, and merely a product of the majority Justices' more subtle but equally jurisdictional rule, "habeas petitioners always lose."

Posted by: Commenter | Jun 15, 2007 1:22:16 AM

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.

Posted by: George | Jun 15, 2007 1:29:35 AM

(Back on track here)
Prof. Berman--
When I read the Bowles case, I couldn't help but think the same thing. While Scalia and Thomas might enjoy writing the draconian opinions once in a while, I can't help but thinking that this result would have been different had it been a civil filing where, say, AT&T was 2 days late with their notice of appeal in an antitrust matter if the Court said that it could be filed in 17 days and not 14. The conservative majority's over hostility to ANY breaks in habeas proceedings is readily apparent and it infected this opinion. For a fairness-minded jurist like Justice Kennedy, this is a betrayal. And I would HOPE that the Chief, who appeared to be a conservative moderated by reason, would have signed on to the dissent, too.
I hate to be cynical but, certainly none of the justices in the majority are ready to retire ay time soon; if this keeps going, those suspected of crimes (or heaven forbid those who attempt to seek federal habeas relief) will find their rights eroded away, except as related to Sixth Amendment rights.

The other very interesting thing about the opinion is that the Court said that the judge's order alowing 3 extra days was "inexplicable." Isn't 3 days a magic number for anyone else? It's the time under Rule 6 of the Federal Rules of Civil Procedure that you get to take an action when the rules provide a certain time to do something after service, and service is made by any means other than personal service (i.e. even electronic filing!) Now, I don't believe it applies in this circumstance because it's triggered by a judge's order, not a party's service, but oftentimes that's even automatically included in the Court's ECF automatic deadline docketing system. The judge, or the judge's clerk, believed that the extra three days applied. And it's not irrational to believe that it did. This is not "inexplicable" (in other words, the attorney should have known better) but a rational, but erroneous, reading of Rule 6. WHY did no one point this out? (Or did they in oral argument?)

I'm curious.

Posted by: (Former) District Clerk Battling Blakely | Jun 15, 2007 6:53:48 AM

Commenter,

Your analogy between statutes of limitation and the deadline for filing notices of appeal is quite flawed, in my opinion. There is a very good reason that a legislature may want to provide equitable exceptions to statutes of limitation while refusing to provide equitable exceptions to the deadlines for filing notices of appeal. After all, the party wishing to file his notice of appeal has already had his day in court. For that reason, there is a finality interest in trial-court judgments that does not exist for mere unadjudicated claims. (Although, of course, the legislature, at its discretion, may turn a statute of limitation into a statute of repose, establishing a finality interest for mere claims as well.)

But in the end, the policy decision regarding whether to treat statutes of limitation and appellate deadlines the same (i.e., with equitable exceptions or not) is for the legislature. It is not for the courts. There's absolutely nothing wrong (or necessarily inconsistent) with Scalia, Thomas, and Kennedy, in the prior cases relied upon by the dissent, agreeing that Congress had permitted some equitable exceptions in other statutes and circumstances and then, in Bowles, deciding that Congress did not intend to permit open-ended extensions of time to file a notice of appeal. They're just trying to interpret what Congress has done in different statutes. Congress has no obligation to treat all statutory deadlines the same. So the dissents primary argument, which is: "Hey, in other cases we unanimously thought Congress did not create a hard deadline, so we shouldn't in this case" avoids the basic, specific question: "What did Congress intend in THIS statute?" I think that the majority got it right; moreover, I don't think that the dissent ever even asked the right question. Their effort to distinguish "mandatory" from "jurisdictional" deadlines is hyper-formalism. They should just decide what Congress intended, without worring about court-created categories of statutes.

By trying to keep the discussion away from legislative intent, however, the dissenters' argument ends up being a play for enhanced judicial power over and above the power of the legislature. "We got away with it before" is hardly a reasoned argument; it is a naked power play. Now, I don't think the dissenters consciously wanted to expand their power against the People's representatives. To be fair, I think that the dissenters simply cannot comprehend a world where judges don't ride around trying to do what's "fair." The majority is more attuned to limitations on judicial power. That's the main divide in the Court now, and for the last two generations at least.

The current divide in our jurisprudence can usually be resolved, ultimately, by Congress. The scary part comes when the "fairness" camp (and I have no intention of being pejorative here) uses constitutional provisions to limit the legislatures' power to limit courts' jurisdiction (relying on the Suspension Clause to limit jurisdictional limitations on the lower federal courts, like the MCA, is one possible imminent example). There's no alternative but a constitutional crisis when that happens. Fortunately, it isn't necessary very often, and the judiciary usually backs off.

Mark

Posted by: Mark | Jun 15, 2007 12:20:06 PM

Mark,

I think you misunderstand my argument. I am not saying that statutes of limitations are identical to appeal time limits in all respects. As you state, there are policy arguments for giving equitable exceptions to statutes of limitations that might not apply to time limits. There are also policy arguments for giving equitable exceptions to time limits that do not apply to statutes of limitations. For instance, statutes of limitations ensure that cases will not be brought after evidence has disappeared or become stale. That does not apply to appeals, where the district court's record is all the court of appeals will see.

I agree with you that you should look at the text of the statute, and that was my point in comparing this statute to statutes of limitations. You say Congress intended for this statute to be "jurisdictional," i.e., able to be brought up sua sponte and not subject to equitable exceptions. What is your basis for this? Is it that the statute does not explicitly mention equitable exceptions or waiver? But that can't be it -- statutes of limitations in statutes don't mention them either, but courts infer them as a matter of long-standing canons of interpretation that this is how such statutes should be interpreted.

In the context of this statute, I see no indication whatsoever that congress intended it to be subject-matter jurisdiction. Time limits are quintessential claim-processing rules that don't delineate a class of cases for a court like, say, the diversity jurisdiction statute. The statute codified an identical claim-processing Federal Rule of Civil Procedure with no indication that Congress intended to change its meaning to a jurisdictional rule. You claim that it's an undemocratic power grab to permit an exception. I claim that it's an undemocratic power grab not to permit an exception, because it seems far more likely that Congress did not want to expand the scope of subject-matter jurisdiction, and thus created a claim-processing rule which -- like statutes of limitations -- was implicitly subject to waiver and equity arguments. Justice Thomas did not bother addressing these arguments. Rather, he simply asserted that it was jurisdictional, cited some old cases which have since been repudiated by Kontrick and Eberhart and which did not themselves focus on this particular statute, and presto, another habeas petitioner goes down.

It's appalling, really. And, you talk about naked power grabs, judges overriding the will of the legislature, etc. Do you really think that the legislature had in mind situations where a federal judge actually told a lawyer an incorrect deadline? To call this a trampling of democracy, the will of the people, etc., is obviously a stretch.

Posted by: Commenter | Jun 15, 2007 2:54:32 PM

Commenter,

Nice post. Thanks for engaging. I'm glad we're able to discuss the dissent's cases.

Eberhart involved a case involved Rule 33, in which the party did not object to the extension of time granted by the trial court until during the appeal, not in the trial court.

Kontrick involved a debtor's failure object to the timeliness of an objection to discharge until after the discharge had been denied by the bankruptcy court.

Neither rule involves a rule, like Rule 4 and Section 2101, that has consistently, over a long period of time, been considered jurisdictional. The time limits for appellate jurisdiction, as Justice Thomas points out, have, for decades, been considered jurisdictional. The Court did not consider Rule 33 (in Eberhart) or the bankruptcy rule (in Kontrick) to be similar in nature. Neither do I.

Of course, you think that Congress did intend for Rule 4 and Section 2101 to have equitable exceptions. I don't. I particularly don't think that Kontrick or Eberhart help AT ALL with that assessment. That's where I disagree with the dissenters. Rule 4 and Section 2101 were created long before Kontrick and Eberhart were decided. Those cases provide absolutely no help in determining Congress' intent for a pre-existing Rule and statute. The cases cited by Justice Thomas, in contrast, in which limitations on the time for filing an appeal have been treated as jurisdictional in nature, DO help one decide (at least by Congress' acquiescence to those on-point decisions) Congress' intent.

In the end, the Court in Kontrick and Eberhart declined to interpret the specific time limitations in Rule 33 and the bankrupcty- discharge rule to be jurisdictional. Those cases therefore don't help us decide whether other time limitations, which have previously been held to be jurisdictional (like Rule 4 and section 2101), remain jurisdictional.

I think the Court got it right in Bowles. The time for filing a notice of appeal is quite different, fundamentally, from other time limitations, and there is an extremely long line of precedent consistent with that interpretation. Eberhart and Kontrick are simply not inconsistent with Bowles.

(I could go into the long list of jurisprudential and institutional reasons why the judicial default provision should be for strict time limits for notices of appeal in the absence of clear language in the statute to the contrary, but that's another four pages.)

Finally, I must be right about Congress' intent, because my interpretation of the Rule and statute prevailed 5-4 in the Supreme Court. ;)

Mark

Posted by: Mark | Jun 15, 2007 3:44:54 PM

Dumb question -- the history of the unanimous cases seem to say that Rules can't be jurisdictional because only Congress can regulate the court's jurisdiction -- so if Congress in fact did what was mentioned above: "words were copied verbatim from the Federal Rule, and the legislative history -- and this was not the manipulative sort of legislative history we see today -- basically just said "codifying the federal rule") -- doesn't that imply that Congress intended to give the rule jurisdiction effect? Otherwise, why codify a perfectly good, binding FRCP?

Posted by: JustClerk | Jun 15, 2007 3:59:53 PM

I find your acquiescence argument puzzling, when Bowles's argument was hinged on two forty-year old Supreme Court cases, Thompson and Harris. In both cases (in one case unanimously), the Supreme Court permitted an equitable exception to a supposedly jurisdictional time limit. It is basically impossible to distinguish those cases from this one in a principled fashion, so Justice Thomas held that they were overruled. Why can't we just say that Congress acquiesced to those decisions?

More generally, in the cases Justice Thomas cites with language like "mandatory and jurisdictional," first, no party ever actually claimed that the rule was subject to narrow equitable exceptions or waiver, and the Court did not make the claim-processing/jurisdiction distinction. Second, in Kontrick and Eberhart, the Court at least stated that those cases should be taken with a grain of salt, meaning that mere reliance on words "mandatory and jurisdictional" without more in pre-Kontrick and pre-Eberhart case law is a doubtful method of statutory construction. In the cases that are clearly most precisely on point (i.e. where the Court had to grapple with a legitimate equitable argument based on reliance on a federal judge) -- Harris and Thompson -- the Court voted for an exception. Now, these cases are overruled. I cannot understand how Bowles can possibly be seen as a reaffirmation of longstanding precedent.

Posted by: Commenter | Jun 15, 2007 4:04:21 PM

Just-clerk: Congress codifies rules and cases all the time without the intention of transforming their meaning. In this case, I believe the reason it was codified was that there was a pre-existing federal statute mandating a different time for notices of appeal. While codification was probably technically not necessary (Rules overruled previously enacted statutes), the codification prevented the existence of an abrogated and incorrect statute in the U.S. reports.

Posted by: Commenter | Jun 15, 2007 4:07:01 PM

Compare Davis v. Woodford.

Davis almost got Nifonged by the Warden, the California Supreme Court and by the District Court; if the Ninth, that bastion of liberalism (aka, justice) had denied jurisdiction, Nifonged he was.

Reasonable people can disagree, but to some of us lay people it sure looks like the Warden, the California Supreme Court, and the District Court wanted to break the law (Santobello) to retain a conviction, a lot like some DAs fight the Innocence Project even though innocence is irrefutable.

It's maddening. And it's sometimes hard to tell who the good guy is.

Posted by: George | Jun 16, 2007 2:18:30 AM

Speaking for the general public, this decision seems frightening to me. A judge sets a deadline for appeal, and a lawyer meets that deadline. Then, after the fact, a court contradicts the judge and takes away from the client one of the most (the single most?) important right of a citizen before the law. The lawyer (and by extension the client) was just supposed to know that the judge didn't have the power to set this deadline, and failure too contradict a judge on what appears to a lay person to be an esoteric point of the law cost Bowles dearly.

While I find arguments about jurisdiction and acquiescence interesting to read about, as a citizen in a democracy founded on principles of fairness and equality before the law, my sense is that Bowles has been treated in a way that is grossly unfair. This is the kind of injustice that this country was founded to abolish.

I realize that the law is esoteric, and that things are not always what they seem, but is there an reasonable argument that with this judgment Bowles has gotten a fair hearing?

Posted by: So Not A Lawyer | Jun 17, 2007 9:38:21 AM

Commenter,

I (like the majority of the Court) don't find Harris or Thompson persuasive. Those cases involved the application of Rule 73, in which Congress provided explicit rules for extending the time for filing a notice of appeal. A party relied on the district court's finding of excusable neglect (Harris) and the timeliness of a precursor motion (Thompson) as the basis for establishing the deadline for filing their notice of appeal.

To me, there's a difference between a court having the power to find excusable neglect or determining that a precursor motion is timely and, after such findings, determining that a party has more days to file a notice of appeal than allowed by statute. We can disagree about what constitutes "excusable neglect" or whether a precursor motion is "timely" based on when it's served or filed, but, after all those determinations are made, the district court can't say that seventeen days is less than fourteen days.

Like the majority, I believe that jurisdictional statutes (like 2101 and 2107) have more of a limiting effect on the federal courts' jurisdiction than Rules. And if we're wrong, Congress can change them. But when Congress says a court can't extend the time for filing a notice of appeal by more than fourteen days, that limitation on the courts' jurisdiciton has definite meaning for me. All the federal courts should respect that limitation, and Harris and Thompson are simply inopposite to this basic, and long-standing principle.

You neglect the long list of cases cited by the Court for statutory jurisdictional limitations: Curry (1848); Scarborogh (1883); Griggs (1982); Torres (1988); Hohn (1998). The Court then follows up with the long line of Court of Appeals cases treating the deadline for filing notices of appeal as jurisdictional. These cases are much more on-point to the question in Bowles (i.e., when Congress directs, in a statute, that a district court can't extend the deadline for filing a notice of appeal more than fourteen days, can a district court extend the deadline for filing a notice of appeal seventeen days?) than Kontrick, Eberhart, Harris, and Thompson.

So Not a Lawyer,

I'm with you: it's scary to realize that judges make mistakes. And the system for correcting those mistakes is long, arduous, expensive, and uncertain. If you're ever involved in our court system, I hope you have a lawyer that tries to insulate you from judge (and jury) error. But in the end, your lawyer is human too. It's a human system, and it's capable of many errors. Just don't expect to cut things too close.

Mark

Posted by: Mark | Jun 18, 2007 12:06:37 PM

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