It has been a long time since I have written in this space, and the reasons for that vary, but I am going to return on occasion now because there are reflections that need to be made and this is the only good place for me to make them. The one important change that must be noted before all else is that I am now married. I note it because that development colors everything from now on . . . and I could not be more happy about it. Now, on to the legal reflection.
Tony Mauro, a correspondent for Legal Times, highlights a criminal case from this term at the U.S. Supreme Court as a way to show the conservative-liberal divide on the Court. I point it out to demonstrate the bias of its presentation. If you took everything Mauro says at face value, you would think that the world is ending because the mean conservatives on the Court are changing the rules in order to stick it to criminals, the discriminated, the downtrodden and the rest. But think about the case: A criminal defendant files a habeas corpus petition three days late according to the deadline provided in the published federal rules of criminal procedure. He filed late because the trial judge gave him an incorrect deadline which the attorney did not bother to double-check. So, the mean conservatives on the court rejected his habeas petition because such deadlines are jurisdictional and a judge has no power to alter the jurisdiction of the court.
This is the correct outcome under both the jurisprudence of the Court and the rules, but that does not stop Justice Souter from whining about the fact that the Court does not cut this criminal a break and make an exception. Yet, especially in the criminal setting, one exception will be exploited by thousands, and before long it is not an exception at all but its own rule. The rules exist to be followed, whether you miss a deadline by one day or a thousand. That isn’t mean: it is called the law.
