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Second Chances—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on January 25, 2012.

Second Chances
By Linda Greenhouse ’78 MSL

The Supreme Court’s decision last week giving an Alabama death-row inmate who was abandoned by his lawyers a second chance at an appeal has been justly celebrated. The 7-to-2 decision in Maples v. Thomas was a welcome display of compassion by a substantial majority of the Roberts court – for which compassion (dare I say empathy?) is not a descriptor that often springs to mind.

The inmate, Cory R. Maples, convicted of killing two drinking companions during a night on the town, had been represented during a state-court appeals process by two volunteer lawyers from the white-shoe law firm Sullivan & Cromwell. The lawyers left the firm in mid-stream for new jobs without informing either their client or the court. Unbeknownst to Mr. Maples, the 42-day period for filing a notice of appeal expired, thus creating a “procedural default” that disqualified him from seeking a writ of habeas corpus in federal court. “In these circumstances, no just system would lay the default at Maples’ death-cell door,” Justice Ruth Bader Ginsburg wrote for the majority. Only Justices Antonin Scalia and Clarence Thomas dissented.

For anyone who witnessed the sharp right turn that the Roberts court took during the 2006-7 term, this decision presents a puzzle. In June 2007, the court ruled in another missed-deadline case brought by another convicted murderer (although not under a death sentence.) This case, Bowles v. Russell, differed in particulars – the missed deadline occurred in federal rather than state court – but was strikingly similar in atmospherics.

If anything, what happened to the Ohio inmate, Keith Bowles, was worse than what happened to Mr. Maples. He and his lawyer (he had one) missed by three days a deadline for filing an appeal in his habeas corpus case because the federal district judge gave them the wrong date. The judge told them they had 17 days when the federal rule actually allowed only 14. Ordinarily, deadlines of this sort in federal court are “jurisdictional” – that is, a missed deadline is fatal, depriving the court of jurisdiction to consider the case. But a 45-year-old Supreme Court precedent had created a “unique circumstances” exception, giving courts some measure of flexibility. The precedent seemed tailor-made for Mr. Bowles’s situation.

But in one of the most mean-spirited Supreme Court decisions I can remember, a 5-to-4 majority overruled the inconvenient precedent and held that there could be no excuses. The majority opinion, by Justice Thomas, prompted Justice David H. Souter to declare in dissent: “It is intolerable for the judicial system to treat people this way.” Justice Thomas’s opinion was joined by Justice Scalia, Chief Justice John G. Roberts Jr., and Justices Anthony M. Kennedy and Samuel A. Alito Jr., then completing his first full term on the court. It was a term during which a newly cohesive conservative majority overturned a half dozen precedents, leading a despairing Justice Stephen G. Breyer to exclaim from the bench on the final day: “It is not often in the law that so few have so quickly changed so much.”

So what intrigues me is how the Roberts court found its way from the 2007 decision to last week. The Maples opinion doesn’t cite the Bowles case – not surprisingly, because as a formal matter, the questions each presented are distinct. But that doesn’t make it any easier to understand how a court that could issue the first decision could turn around and issue the second. Justice Alito’s concurring opinion in last week’s case is particularly striking. Having joined the opinion in 2007 that rejected the “unique circumstances” line of cases, Justice Alito wrote last week, without apparent irony: “Under these unique circumstances, I agree that petitioner’s attorneys effectively abandoned him and that this abandonment was a ‘cause’ that is sufficient to overcome petitioner’s procedural default.” Chief Justice Roberts and Justice Kennedy said nothing.

Of course, from the relatively short set of opinions in the Maples case (totaling 36 pages), we don’t know what might have ended up on the cutting room floor. Although the case was argued back on Oct. 4, the second day of the term, the decision wasn’t issued until Jan. 18, a considerable amount of time to elapse for a decision that appears quite straightforward. There may well have been some drama behind the scenes. For example, perhaps Chief Justice Roberts might originally have voted in dissent.

That’s sheer speculation, but here is my train of thought: of the seven cases argued during that first week, four have been decided, and Justice Ginsburg has written the majority opinions in two of those; the other was a major copyright case, Golan v. Holder, issued last week on the same day as the Maples decision. It’s not common for one justice to receive two substantial opinion assignments from the same week of argument (although Justice Scalia has written two majority opinions from the following week, one a unanimous opinion and one in a case decided by a vote of 8 to 1).

The chief justice makes the opinion assignment in all cases in which he is in the majority, and the Maples case strikes me as an unlikely assignment for Chief Justice Roberts to have given to Justice Ginsburg. Like all chief justices, he assigns himself the opinions in truly major cases – which this was not. Beyond that, like some but not all of his predecessors, he seems drawn to assigning himself feel-good decisions that make the court look good. The retired Justice John Paul Stevens, in his recent memoir, “Five Chiefs,” ascribes this pattern to Chief Justice Warren E. Burger, who cared a great deal about his own image as well as that of the court. It most certainly does not fit the behavior of Chief Justice William H. Rehnquist who, while he clearly cared what people thought of the court, seemed to care not one whit what they thought of him.

Despite having clerked for, and been mentored by, William Rehnquist, Chief Justice Roberts fits the Burger pattern more than the Rehnquist pattern in this respect. He is acutely self conscious, aware at all times of the court’s image and his own. Had he originally voted with the ultimate majority in last week’s case, I would have expected him to take the assignment for himself. Had he and Justice Kennedy originally voted the other way, that would have left Justice Ginsburg as the senior associate justice in the majority, with the power to assign the case to herself.

Or perhaps something else entirely was going on. Maybe Justice Scalia’s dissenting opinion began as a majority opinion (unlikely, though, given his two assignments the following week; only 12 cases were argued during the court’s October sitting, with nine justices to divide the opinions among.) If so, then maybe its no-excuses position just couldn’t stand up in the cold light of day to the persuasiveness of Justice Ginsburg’s take on the case, and he lost his majority when Chief Justice Roberts and Justices Kennedy and Alito jumped ship.

Justice Alito’s opinion concurring with the majority does sound a bit like the product of someone who finds himself, almost against his will, in a place where he never expected to be. Or perhaps he wrote his separate opinion for another reason, to distance himself from Justice Ginsburg’s criticism of Alabama’s wildly inadequate system for providing legal representation for defendants charged with capital crimes, leading to an unusual degree of reliance on out-of-state volunteer lawyers. “What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune,” Justice Alito wrote.

In any event, whatever happened behind the scenes, the puzzle of this welcome decision remains. With redistricting, immigration, and the Affordable Care Act on its docket against the backdrop of a presidential election, the Supreme Court is laboring under the brightest public spotlight in many years – perhaps even bright enough to have made a William Rehnquist cast an occasional glance over his shoulder. If the Roberts court of 2012 is no longer quite the Roberts court of the cold spring of 2007, that can only be a good thing, whatever the reason.