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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 18, 2007 ::
    I've been arguing online today about Bowles v. Russell, where the Court, 5-4, held that a criminal defendant seeking habeas review in federal court is bound by the time limit fixed in the Fed.R.App.P., notwithstanding that the federal trial judge told him he had three extra days; the 14-day limit (itself a limit on an extensnion only available in limited circumstances that apply here) is jurisdictional, the Court says.

    Conservatives, especially Christian ones, have to hate cases like this, because the rule-of-law principle is pitted against justice itself. Bowles is "only" facing a 15-year term, but nothing in the Court's opinion turned on its not being a capital case. Indeed, the case has prompted memories of that of Roger Keith Coleman, who was in fact executed. His federal appeal from his Virginia conviction was likewise jurisdictionally barred, and in turning it aside, Justice O'Connor -- not Justice Scalia, mind you, but Justice O'Connor, the one who was willing to devise a new legal rule for almost every fact pattern she saw -- began the opinion: "This is a case about federalism."

    Coleman's guilt has since been sustained by DNA tests long sought by his supporters, but there was enough that was hasty about his trial that, even if it was "a case about federalism" in the posture in which it reached the Court, one has to wince.

    And yet -- and yet -- do we declare all procedural deadlines merely advisory in criminal cases? Would that be itself the rule of law, and if so, would the rule of law be well served by the consequences? No one should be happy about the Bowles case, but I'm not yet persuaded it's wrong.

    :: David M. Wagner 7:00 PM [+] ::

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