The criminal divide on SCOTUS
In this new piece entitled “Low-Profile Supreme Court Case Offers Glimpse of Sharp Divide,” Tony Mauro highlights a point that I noticed when reading today’s 5-4 decision in Bowles v. Russell: the Justices seem to be deeply divided in nearly all criminal law cases these days. Here’s excerpts:
[T]he low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term. Convicted Ohio murderer Keith Bowles lost the case on Thursday by a 5-4 vote, because he was two days late in filing a federal habeas appeal back in 2004….
“This court has no authority to create equitable exceptions to jurisdictional requirements,” Justice Clarence Thomas wrote for the majority. Joining him were Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito Jr.
In dissent, Justice David Souter was blunt and unforgiving. “It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.” He was joined by the other justices in the moderate-liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer.
“This is a doctrinal thing that only lawyer geeks and the Supreme Court care about,” says Kevin Russell of Howe & Russell in D.C., who authored a brief in the case on behalf of Bowles for the National Association of Criminal Defense Lawyers. “But you also see more frustration from the liberals on the court who are upset that the rules are changing just because the composition of the court has changed.”
Though I’ve not formally counted, I believe the vast majority of 5-4 splits this term have been in criminal law cases and most (though not all) have been the same 5-4 composition as Bowles.
As regular readers know well, the traditional divides do not hold true to form in the Sixth Amendment sentencing cases. The deepening divide in other areas just makes me that much more eager — and that much more uncertain — about what will happen in Rita.