Roberts’ And Alito’s Pragmatic Turn

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.

You may also like...

11 Responses

  1. Dave Hoffman says:

    Rolito. Hee. But there are hundreds of links to the term on a quick google search, and I worry that folks will confuse the hybrid justice with, for example, an early form of in-line-skate.

  2. MJ says:

    This is slightly off-topic, but I’m always a little annoyed by the fact that Justices Scalia and Thomas aren’t credited enough for sticking – very consistently, though not with a perfect correlation – to their judicial philosophy even when it produces results that one would think they aren’t in favor of.

    Yesterday’s ruling certainly makes it more probable that in the future the government will lose less issues due to waiver of statute of limitations (yes, I realize that the issue could also cut the other way, but at least in the habeas context this is really an issue about government waiver). That was the outcome of the case yesterday – and one would think that would be a result two “tough on crime” justices would have liked. Justices Scalia and Thomas would have decided the issue the other way.

    This view – adherence to the text of rules and statutes and to the text and original meaning of the constitution – also explains their view in Crawford v. Washington (6th Am Confrontation Clause bars testimonial statements where witness not present to testify) which is also not a law enforcement friendly decision.

    You don’t have to agree with Justices Scalia and Thomas, but they are very consistent in applying their philosophy – even when that leads to results that they probably don’t like.

  3. Adam W says:

    Note another split in today’s Jones decision. Roberts in the majority, Thomas/Scalia dissenting. (Alito, no part)

  4. Eh Nonymous says:

    I agree totally with MJ, except his theory doesn’t match up with the facts. Do you think they were displeased by the result in Bush v. Gore?

    Amend the theory to predict: when the matter is of sufficiently low importance that the outcome is acceptable, they will follow their philosophies to outcomes they would not prefer were they sitting as superlegislature. When, on the other hand, the stakes are high enough, anything goes.

  5. Simon says:

    Eh Nonymous –

    On a conservative estimate, Scalia has decided in excess of 1600 cases, and a more realistic estimate would be twice that number. If your car ran flawlessly for 1600 days – about four years – and failed to start once during that time, I think you’d still consider that car to be reliable. So you’ll need to do a bit better than the customary citation of one case in 1600, Bush v. Gore – even assuming that case supports the proposition you cite it in support of, a contentious claim in the first place – to prove MJ wrong, especially given that MJ explicitly noted (as I think we all must) that Scalia sticks to his guns “very consistently, though not with a perfect correlation,” emphasis added.

  6. MJ says:

    Gee Eh, one might consider Justices Stevens, Ginsburg, and Souter’s sudden fealty to federalism in Bush v. Gore to be inconsistent with their judicial philosophy as well. . . but I can see how you would find that not worth mentioning.

    Which brings me back to my slight annoyance that all rules of reason seem to be suspended when it comes to Justices Scalia and Thomas – their consistency in opinion is cast aside when convenient in argument, while the erstwhile inconsistency of the liberal justices on the court is held out as enlightened jurisprudence.

    I guess some justices are more equal than others.

  7. Simon says:

    one might consider Justices Stevens, Ginsburg, and Souter’s sudden fealty to federalism in Bush v. Gore to be inconsistent with their judicial philosophy as well. . . but I can see how you would find that not worth mentioning.

    Well, to be fair, you can’t really accuse them of being inconsistent. If a Judge has the judicial philosophy that the (desired) result dictates the reasoning, rather than vice versa, it becomes impossible to say that any method of reasoning is a deviation from that Judge’s judicial philosophy. Can one really say that one or another Brennan opinion was “inconsistent with [his] judicial philosophy”? I have my doubts that such a term has any meaning unless the judge has an articulated and neutral set of standards with which he approaches a case; Seth Waxman opined before the Court in Florida Prepaid that “we are attracted by any notion, or principle, the logic of which carries us to a result we think is just,” and perhaps I’m being unfair here, but I sometimes think that’s a fairly good summary of the liberal vision of the courts. By contrast, the reason that people are able to criticize Scalia is precisely because Scalia has an articulated judicial philosophy, against which the results he gets can be measured – and, yes, sometimes found wanting.

  8. MJ says:

    Good point Simon; it is difficult to compare something to nothing.

    I would hasten to add though that I can think of a dozen decisions in which that particular threesome was not in the least bit interested in letting the states resolve things themselves.

  9. anon says:


    As far as I’m aware, no Justice (liberal or conservative) on the Rehnquist Court took the view that a State Supreme court’s interpretation of state law could be second guessed by a federal court. That principle of federalism was well-settled until Bush v. Gore. The contested federalism questions on the Rehnquist Court involved very different issues, such as sovereign immunity and the extent of Congress’s Commerce Clause powers.

    So your attack on Stevens et al. for their supposed inconsistency is a cheap shot.

  10. Adam says:

    Anon: OK, I’ll bite. Where in BvG did the Supreme Court overrule the Florida Supreme Court’s reading of Florida law? According to the Court’s opinion, there were only two questions before the Court:

    “The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, §1, cl. 2, of the United States Constitution and failing to comply with 3 U.S.C. § 5 and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.”

  11. MJ says:

    In the mythology that is Bush v. Gore, facts can be stubborn things.