Roberts’ And Alito’s Pragmatic Turn
posted by Dan Filler
In an otherwise mundane decision yesterday, Day v. McDonough, Justices Alito and Roberts joined a surprisingly pragmatic habeas corpus decision penned by Justice Ginsburg. The case involved a state prisoner who filed his habeas papers 23 days after the federal statute of limitations had run. A negligent attorney for the State of Florida, however, had miscalculated the time and the state conceded in briefs to the district court that the petition was timely. Fortunately (or unfortunately, depending on your perspective) a johnny-on-the-spot federal magistrate took out his abacus and discovered the error. He then dismissed the petition sua sponte.
The Supreme Court affirmed the per curiam decision of a conservative 11th Circuit panel (Pryor, Dubina and Tjoflat) holding that the district court was permitted to dismiss the case sua sponte on statute of limitations grounds. It held that the State’s waiver of the issue did not forfeit its statute of limitations claim. The issue is controversial because the Federal Rules of Civil Procedure generally provide that statute of limitations defenses are forfeitable. As Justice Scalia pointed out, the majority opinion “disregards the Federal Rules of Civil Procedure in habeas corpus cases chiefly because it believes that this departure will make no difference.” Scalia describes the holding as “novel presumption against” applying these rules.
On its face, the decision might be termed “conservative” because, well, the criminal defendant loses. (That is how Sunstein, at least, would probably classify it – based at least on his methodology in Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation.) But in fact this relatively loose play with the Federal Rules of Civil Procedure is pretty darn pragmatic. Scalia makes a good case that precedent and Congressional action both cut against this snubbing of the Federal Rules. Based on everything we’ve heard to this point, I wouldn’t have been surprised to see Roberts and Alito share Scalia’s skepticism. (And what about the uber pragmatist, Breyer? What’s he doing in bed with his nemesis?)
I’m neither a Supreme Court scholar nor a civil procedure buff. (I learned civil procedure from John Sexton, which means that I’d be an AWESOME law dean!) But does this configuration provide a hint – if only that – that Rolito (can I trademark that term, kind of like Three-peat?) will be more Rehnquist than Scalia? I guess we’ll just have to see.
Hat tip to a former student.