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June 14, 2010

AEDPA, equitable tolling, and SCOTUS "umpires" with empathy

I may not get a chance until tonight to read closely the Supreme Court's opinions today in Holland v. Florida (available here). But I think it is worth an early comment that the Court's conclusion that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling" comes out as an 7-2 outcome AND  that Chief Justice Roberts fully joins Justice Breyer's opinion for the Court.  Moreover, this final paragraph of Justice Scalia's dissent in Holland prompts the title of this post:

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears ajust result is often strong, especially when the client faces a capital sentence.  But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made.  Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19 (14th ed. 1918).  The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.

Were Justice Scalia to use terms that had become popular in the political debates over recent SCOTUS confirmation hearings, he might have ended this paragraph by complaining that the majority is failing to be a neutral umpire and is instead allowing its empathy for a capital defendant's plight color its call on balls and strikes.  And, notably, Chief Justice Roberts happens to be one of the judicial umpires in Holland whom Justice Scalia claims is letting empathy for a criminal defendant get the better of him.

June 14, 2010 at 12:27 PM | Permalink


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Allowing equitable tolling can be see as an interpretation that allows for constitutional avoidance, thereby circumventing Scalia's objection.

The constitutional issue in this case is Gideon. There is a constitutional right to effective assistance of counsel that Congress can not abridge with legislation. Disallowing equitable tolling creates a new constitutitional violation due to ineffective assistance if the result is forfeiture of a valid constitutional claim that would have prevented an execution.

More generally, Gideon is fundamentally inconsistent with a truly adversarial system in criminal cases. Rewriting the federal rules of criminal procedure to reflect this deep theoretical inconsistency, by ceasing to make forfeiture of a claim the presumptive penalty for a missed deadline (which is almost always a consquence of ineffecctive assistance), would be the most sensible solution systemically.

Posted by: ohwilleke | Jun 14, 2010 1:20:35 PM

Ohwilleke, does "constitutional avoidance" apply to avoiding questions the Court has already definitively settled?

Many people do not like the holding that the constitutional right to counsel does not extend to collateral review, but it is settled precedent.

Posted by: Kent Scheidegger | Jun 14, 2010 1:37:26 PM

The lineup is intriguing, but I think the Chief and Justice Alito are both assuming (correctly) that equitable tolling will only be appropriate in extreme circumstances, such as this one.

At the end of the day, I'm not sure how significant this ruling really is as a practical matter. I've dealt with quite a few habeas cases that were ultimately punted on AEDPA grounds, and I can't think of a single one where equitable tolling would have been applicable.

Posted by: Res ipsa | Jun 14, 2010 1:59:22 PM

Kent, I believe the Court has said that when a process is not constitutionally required, nevertheless, when the state provides it, there are standards of fairness that must be met. One can argue what those standards are (the Court has set the bar fairly low), but not that there are none.

Here, it is alleged that, although appointed counsel was not required, the state provided one anyway, and then successfully resisted petitioner’s attempts to represent himself once it became clear that counsel’s performance was grossly inadequate.

The state could have saved itself a lot of trouble simply by letting the petitioner represent himself.

Posted by: Marc Shepherd | Jun 14, 2010 2:54:14 PM

Marc's suggestion that the constitutional right to represent yourself is in play, to the extent that the right to counsel is not, is astute and on point.

Posted by: ohwilleke | Jun 15, 2010 3:59:28 PM

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