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October 31, 2005

Proof that Roberts would support instant replay?

With umpire metaphors all the vogue, I am inclined to read the interesting penultimate paragraph of the Supreme Court's decision today in Eberhart v. US, No. 04-1538 (S. Ct. Oct. 31, 2005) (available here), as an indication that Chief Judge Roberts and the Court he now leads might support the use of instant replay if judging a sporting event.  Here's the paragraph in Eberhart that caught my eye:

We finally add a word about the approach taken by the Court of Appeals.  Although we find its disposition to have been in error, we fully appreciate that it is an error shared among the circuits, and that it was caused in large part by imprecision in our prior cases.  Our repetition of the phrase "mandatory and jurisdictional" has understandably led the lower courts to err on the side of caution by giving the limitations in Rules 33 and 45 the force of subject-matter jurisdiction.  Convinced, therefore, that Robinson and Smith governed this case, the Seventh Circuit felt bound to apply them, even though it expressed grave doubts in light of Kontrick.  This was a prudent course.  It neither forced the issue by upsetting what the Court of Appeals took to be our settled precedents, nor buried the issue by proceeding in a summary fashion.  By adhering to its understanding of precedent, yet plainly expressing its doubts, it facilitated our review.

This fascinating compliment for the work of the Seventh Circuit (even as it was reversing) suggests CJ Roberts is a big fan of judicial transparency that facilitates SCOTUS review.  It also suggests that the circuit courts should be especially wary about "burying" issues through summary dispositions.  Apparently the Roberts Court, as evidenced by all four of its dispositions so far this Term, is going to try to take a close second look at every case that comes its way.

October 31, 2005 at 12:38 PM | Permalink


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