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June 15, 2010

"A Good Day for Judicial Discretion" (though I would say "Equitable Principles")

The first part of the title of this post is the headline of this intriguing New York Times editorial discussing some of the Supreme Court's rulings yesterday.  Here is how the piece starts and ends:

Equity is an elusive legal concept that occasionally allows some leeway in applying the rules of the law and is often unappreciated by judges who insist the law means only what it says. That was clear in 2008 when the United States Court of Appeals for the 11th Circuit refused to allow federal courts to consider a death-penalty conviction of Albert Holland because his lawyer had inexcusably let the filing deadline pass.  Fortunately, seven members of the Supreme Court proved less rigid in their thinking on Monday and reversed that blinkered decision....

Justice Scalia wrote that while it is tempting to tinker with technical rules to achieve a just result, the Constitution does not give judges the discretion to rewrite Congress’s rules.  The law is the law, in other words, and tough luck if your incompetent lawyer leaves you hanging.

It was heartening to see that Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. refused to subscribe to that philosophy, just as they have broken with Justice Scalia in other criminal justice cases.

The full court demonstrated that same spirit of understanding in another opinion issued Monday, when it ruled that a minor drug offense did not justify deporting a legal immigrant. The case was brought by Jose Angel Carachuri-Rosendo, an immigrant from Mexico found in possession of a single tablet of Xanax, the anti-anxiety drug, without a prescription. Overruling the lower courts and disagreeing with the Obama administration, the court said that the possession did not qualify as a serious felony, even though Mr. Carachuri-Rosendo had a previous misdemeanor conviction.

The decision gives hope to other immigrants fighting deportation on minor charges that are taken far too seriously by the government.  Taken together, the outcome of Monday’s cases suggests that even on a conservative court, the letter of the law has its limits.

I think the headline of this editorial is a bit misleading given that, as the text of the editorial notes, the Holland case is pricipally about the development of equitable principles, not really "judicial discretion."  Moreover, as explained in this post, the fascinating 5-4 ruling in the Dolan restitution case actually fits this equitable narrative better than the ruling in Carachuri-Rosendo.  Nevertheless, I think it notable to see the New York Times praise the Supreme Court for acknowledging the limits of law.

June 15, 2010 at 10:18 AM | Permalink


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carachuri doesn't really fit the equitable narrative at all. it was a pretty straightforward statutory interpretation case, but then again so was dolan before breyer came up with his six-part fantasy.

Posted by: big bad wolf | Jun 15, 2010 12:58:29 PM

You know what's funny--the idea that a capital murderer has a claim in equity.

Posted by: federalist | Jun 15, 2010 3:00:02 PM

Yes, summary execution would be best. I'm sure I read something about that in Common Sense or the Federalist (no relation) Papers.

Posted by: Anon | Jun 15, 2010 3:08:41 PM

I don't believe in summary executions. But the idea that a capital murderer is somehow entitled to equity is one that escapes me.

I see that you cannot really deal with my point, since you caricaturize my comment.

Posted by: federalist | Jun 15, 2010 3:48:32 PM

Roberts joined Breyer's majority (as he did in Comstock) in full.

the end.

Posted by: . | Jun 15, 2010 4:27:16 PM

ah, the appeal to authority . . . .

But of course, no answer to the question--why does a capital murderer have any claim to equitable relief?

Posted by: federalist | Jun 15, 2010 7:10:58 PM

federalist, your position assumes that the defendant is in fact a capital murderer. The defendant contests that. Yes the jury found him guilty and and the state courts have affiremd. But he is now arguing in federal court that the state courts got it wrong and that he is NOT a captial murderer and that he was not fairly tried because his federal constitutional rights were violated in some way. he just wants his arguments heard by the federal court. In this respect, he is entiteld to as much equitable consideration as anyone else. And the Supreme Court (one of the more conservative in the modern era) has so ruled. so there.

Posted by: anon 1 | Jun 15, 2010 9:38:33 PM

This wasn't about whether the defendant was a capital murderer or not. It was about whether he reasonably relied on his attorney to file a habeas petition in a timely manner to challenge the legality of his conviction and sentence. If he was deprived of that opportunity because of the malfeasance of his lawyer, thru no fault of his own, then equitable tolling of the relevant time limits for filing a habeas petition should be allowed, as the court concluded. Seemed like an easy case to me, whether the defendant was an accused "capital murderer" or your average unexceptional drug dealer. The notion that one can bend or ignore fair procedure based only on the nature of the stae's accusations is anathema to me.

Posted by: Grotius | Jun 15, 2010 10:21:30 PM

You're right, anon, I do assume that he is a capital murderer--legally speaking (and this is a legal blog) he is. As for innocence, fine, if he's got evidence, let's see it---and a missed deadline ain't gonna keep that out. Until such time, the idea that this guy isn't guilty until the federal courts get their precious habeas review isn't exactly compelling.

It is funny, the idea of "entitled". He's "entitled" to have the statute ignored, "entitled" to have a lawyer mistake give him a windfall. This just shows how far we've gone. Putting aside the issue of whether "entitled" and "equitable" go hand in hand (they don't), it's amazing that one is so outraged about the prospect of a killer losing his third tier of review. Don't commit capital murder, and then you won't have to worry about only getting two swings instead of three.

Posted by: federalist | Jun 16, 2010 12:02:46 AM

Is some big factual mistake being corrected here, about the guilt of the defendant, a miscarriage of justice? No one is claiming that, or did I miss that in the story?

In the absence of such a important mistake, the writing by Congress intended to make it difficult to appeal by the short time permitted. Equity here is a synonym for insurrection. It does generate lawyer jobs.

Prof. Berman states that Legal Realism cannot be reversed, realistically. Yet, it has been an unmitigated catastrophe for the nation, and must, even by impeachment and criminal prosecution of federal appellate judges. Legal Realism came from the German Free Law movement taught to Cardozo, by Llewellyn, a German alien, of contract genius fame. Its other spawn? The Nazi Judiciary ignored the writing to seize Jews and confiscate their assets without their having committed any crimes. The Nazi judiciary had one dissenter, offered the choice of retirement from the bench or the firing squad. We do not even have one such dissenter. In the 1940's the laws were changed to allow that, but prior to the change, only Legal Realism legitimized that crime against humanity.

I am not comparing ours to the Nazi judiciary. However, ignoring the writing runs a risk. If Germans did not like the voiding of a will because the signature came before the date, and not after the date, they should have changed the laws and regulations, as we should.

Posted by: Supremacy Claus | Jun 16, 2010 6:59:41 AM

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