Very few slam dunk issues reach the Supreme Court. If the Court decides to hear a case, it's because courts around the country cannot agree on a particular legal issue. The Supreme Court steps in to straighten out those issues. Even then, most Supreme Court rulings are not unanimous. If the Court resolves a legal issue by a vote of 7-2, that means that 2 of the country's greatest legal minds saw things differently.
As a practical matter, then, most legal issues worthy of Supreme Court review can be decided either way in an intellectually honest manner. When the Court decides a case 5-4, then it's really close, and a roll of the dice could have swung the Court in the opposite direction. What it sometimes boils down to is which way a particular Supreme Court Justice wants to go, and where his instincts will take him.
Yesterday, we saw this play out in a dramatic way that shut the courthouse door to a criminal defendant. Here's what happened: some guy, we'll call him Artie, committed a crime and wanted to take up an appeal. Normally, you have 30 days to file with the Court a "notice of appeal." It's a piece of paper that takes three minutes to type out on the computer. The judge who convicted Artie, though, told Artie's lawyer that he could file the notice of appeal a few days later. That's what Artie did. The Supreme Court heard the case and in its ruling noted that the courts have been all over the place in excusing these late court filings. The Court put its foot down this time and, in a decision written by Clarence Thomas, said that 30 days means 30 days and a late notice of appeal means you blew the deadline and its tough luck if you're sitting in jail, but rules are rules. Four other Justices agreed with Thomas, so Artie will be sitting in jail for quite some time, thinking about what might have been.
Four Justices disagreed with Clarence Thomas and said, in words and substance, "come on, man, Artie was late by a few days! What's the problem? In the past, the Supreme Court said, courts recognized an exception to rigid deadlines when unique circumstances required it. Yesterday, a majority on the Supreme Court said that the "unique circumstances" exception is wrong and should not be followed anymore.
The Supreme Court did not have to do this. In taking on this case, it decided to iron out a gray area, and it could have gone either way. How do we know this? Because four Justices in dissent put forward their own persuasive version of what the law has stood for over the years. But the five most conservative Justices rejected the more lenient rule that courts have been applying for years. They didn't have to do this. Why did they?
I can't answer that question, but I want to quote the opening paragraph of the dissenting Justice who led the pack on the other side, David Souter. But before I do that, let me say a few words about Souter. He was appointed to the Supreme Court in 1991 by the first President Bush. Liberals worried that Souter was out of touch with the real world because he spent his life in New Hampshire and lived in an old farmhouse and did not seem to be cosmopolitan enough. But as it turned out, Souter has turned into one of the most liberal and pragmatic Justices of the last 10 years. In his dissenting opinion yesterday, he wrote:
The [trial] Court told [defendant] that his notice of appeal was due on February 27, 2004. He filed a notice fo appeal on February 26, only to be told that he was too late becasue his deadline had actually been February 24. It is intolerable for the judicial system to treat people way, and there is not even a technical justification for condoning this bait and switch. I respectfully dissent.
In this time of Iraq and other scandals, a story beneath the media radar is the strong turn to the right by the Supreme Court, with two recent George W. Bush appointees leading the way. George W's father did us a favor in appointing David Souter. George W. screwed us by giving us Samual Alito, who, of course, agreed with Clarence Thomas in the notice of appeal deadline case. We need more Souters and fewer Alitos.
