0:00:00.6 S?: We'll hear argument next in case 06-5306, Bowles v. Russell.

0:00:09.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, the hosts are joined by a couple of special guests, Josie Duffy Rice and Jay Willis from The Appeal. This week's case is Bowles v. Russell, in which the petitioner, a man convicted of murder, was denied his last chance at an appeal because his lawyer was given an incorrect filing deadline. The case ultimately made its way to the Supreme Court, where the nation's greatest legal minds also had trouble calculating the deadline.

0:00:39.0 S?: I know, I could find it. So I'm looking at a calendar. Do you remember what day of the week February 24th was? Or 26th?

0:00:47.4 S?: I believe... I believe it was not... I don't believe it was a weekend.

0:00:50.2 S?: I looked at... There's a time stamp, and I think it might be the time stamp on this...

0:00:55.6 Leon: In the end, is the Supreme Court rejected the case, saying that after the deadline passed, the court that the petitioner had appealed to no longer had jurisdiction, and there was nothing anyone could do. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:15.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have devastated American civil liberties, like domesticated cats have devastated local bird populations. I am Peter. I'm here with Michael.

0:01:28.8 Michael: Hey, everybody.

0:01:30.2 Peter: Rhiannon taking the week to do public defender stuff, help people, things like that.

0:01:35.9 S?: Very selfish.

0:01:37.4 Peter: So we thought, what's the biggest complaint about this podcast? Not enough white guys, right. So let's bring on Jay Willis. Jay, how you doing?

0:01:51.5 Jay: Finally, a chance to share my opinions about the Supreme Court. Thank God.

0:01:55.1 Peter: Yes, Jay is a senior contributor at The Appeal, where he writes about courts and law and politics and stuff like that, and to keep him in line, we thought it would make sense to bring on his boss for the second time, Josie Duffy Rice. How are you doing?

0:02:13.2 Josie: I'm doing great. I gotta say, I don't think I'm technically Jay's boss, but I would really like it if until the end of time, I was referred to as Jay's boss in every single possible capacity, always.

0:02:26.6 Michael: In my mind, you always will be.

0:02:29.1 Josie: Thank you.

0:02:29.2 Peter: Absolutely. Josie is, of course, the outgoing president of The Appeal, and I think before we get started, it's important to share what Josie shared with us during our last recording.

0:02:42.1 Josie: Oh, my gosh, thank God.

0:02:43.3 Peter: Which was that the first time that Josie met Jay...

0:02:46.8 Jay: We're just gonna start with this? Okay.

0:02:48.7 Peter: Yeah, this is the first thing, Jay.

0:02:50.7 Josie: Yeah, we're gonna start with this.

0:02:52.6 Michael: We've got to establish these new characters.

0:02:55.2 Josie: Can I set the scene?

0:02:56.5 Peter: Yeah, tell the story. Tell the story.

0:02:58.1 Josie: Jay and I both went to Harvard Law School, so this is probably a good time for you to just turn us off.

0:03:00.6 Jay: Ever heard of it?

0:03:01.4 Josie: Yeah, we were in the same section in the same year, and you go in and you're like, who are all these people? And Jay is one of the first people I met, and he was wearing his sweater around his neck, tied. Do you guys, you guys can all picture what I'm talking about, like this is not...

0:03:24.1 Michael: Yes, yes, absolutely.

0:03:26.1 Josie: Think of the worst possible...

0:03:28.1 Peter: Slacks and a button down and a sweater.

0:03:31.5 Josie: Yeah. And I'm like, who the fuck is this fascist asshole for sure. I was like, Jay has a great... He's very white, he has great bone structure, and you just like imagine he like hates, hates black people. I could just feel it.

0:03:44.2 Michael: I mean, him with a sweater tied around his neck is like central casting for an '80s villain in like Revenge of the Nerds or...

0:03:53.7 Josie: 100%.

0:03:54.6 Peter: He's Pierce Brosnan in Mrs. Doubtfire, I think is a good...

0:04:00.1 Josie: Also an important part of this is that he was throwing a football around the quad, like it was just like, oh, kill me.

0:04:06.6 Michael: Oh, my God.

0:04:07.9 Peter: Incredible.

0:04:09.2 Josie: So... But he's like kind of funny in class and so in my head, I'm like, "Well, you know, fascists are always good at making you think they're good people," and...

0:04:19.1 Michael: They've got a charm about them.

0:04:20.6 Josie: And then we had to do these reading groups, and we did a reading group on affirmative action, and I saw he was in my reading group, and I was like, "Fuck and shit, now I'm gonna have to argue about affirmative action with this white dude forever." And I forget exactly what he said, but I was like, "Oh, whoa. His politics are pretty good. It's just that he thinks sweaters go around your neck, which they clearly don't." But like, this is called not judging a book by its cover, 'cause things worked out for me and Jay, gotta say.

0:04:50.6 Peter: The next time you see a white guy, remember...

0:04:53.6 Michael: Don't judge the J.Crew catalogue by its cover.

0:04:58.7 Jay: Yeah, I do not know that there is any person to whom Josie has introduced me in the last 10 years, who has not been introduced to me with this specific story. And I am quite confident that at my funeral, she's gonna get up there and do a eulogy and be like, "Did you do the one about how Jay looks like a pro-family values Republican Congressman?"

0:05:21.1 Josie: What do you want from me? You're dead.

0:05:23.4 Peter: Alright, so today's case is Bowles v. Russell, but before we get to that, I thought we would cover a little bit of the ongoing Supreme Court Justice March madness bracket drama.

0:05:36.5 Michael: That's right.

0:05:38.2 Peter: Several weeks ago, SCOTUSblog, the pre-eminent source of Supreme Court news, published a March madness-style best Supreme Court Justice bracket that people could vote on. And it went pretty poorly, we saw Thurgood Marshall, the first black Justice, losing to Anthony Scalia in the first round, I think. And it was generally just sort of like a weird and sycophantic exercise. So Jay, you decided to sort of respond with a bracket of your own, which has gained some steam and public attention, so we wanted for you to kind of tell us what happened, what went through your mind, why you decided to do this, and what you did.

0:06:16.2 Josie: Wait, can I just pause for a second. Did Thurgood Marshall actually lose to Scalia?

0:06:21.7 Peter: Yeah, that's true.

0:06:23.6 Josie: That's beautiful.

0:06:28.1 Jay: We have now lost Josie because she is walking directly into the ocean upon hearing...

0:06:33.6 Josie: That's the funniest thing I've heard in weeks. That's hilarious. That's amazing.

0:06:37.9 Jay: It's an opening round loss, which kinda really lets you know, really lets you know how that whole exercise went. Yeah, it turns out that when you are on parental leave and SCOTUSblog decides to pick the greatest Supreme Court Justice of all time, and you're kind of sleep-deprived, it turns out you'll just do some deranged things like create a response bracket. And the fundamental problem with focusing on just a tiny handful of purportedly occasionally good Supreme Court Justices, is that most of the Supreme Court's Justices, I think we're at 115, just absolutely awful people, like a pot pourri of various forms of bigotry.

0:07:19.8 Jay: And that bigotry has always infused some of their most famous or infamous work, from upholding segregation to forced sterilization to Japanese-American internment during World War II. But also this is about way more than just the Justices being, again, objectively bad people, picking a single greatest Justice plays into this conception that the Supreme Court and the legal system more generally, is the good guy. That of the three branches of government, this is the one that looks out for the downtrodden and we should celebrate that. Like that's super not correct. When they have the chance to use their power to actually do some justice, they find reasons not to act, as I think we're gonna discuss a little bit later.

0:08:07.1 Jay: And then whenever the status quo is under even the tiniest little amount of threat, they suddenly leap into action. So the winner of SCOTUSblog's bracket was Earl Warren, which I would say is probably in the bottom quadrant of objectionable results that were possible here, Chief Justice during the only time in the Court's history when it could be described as anything remotely resembling progressive. But the point isn't who wins, the point is that the Supreme Court has done a ton of the heavy lifting in creating this unstable, unequal country in which we all live, and the Justices are not your friend and shouldn't be treated or talked about as such.

0:08:47.2 Michael: That's right. No ropes, no masters, baby.

0:08:48.2 Peter: That's right. So right now, I think we're down to... What are you calling the final four?

0:08:54.8 Jay: We're calling it the Fetid Four.

0:08:58.0 Peter: And we've been hosting it on fivefourpod.com, because we are kind of positioning ourselves in legal media as a multi-media force against the Court now, now we've got a website presence with brackets and shit, and it's gotten some attention, you've got law professors commenting on it pretty continuously, you've got SCOTUSblog itself and their weirdo editors who actually argue before the Supreme Court and yet are publishing content about the Supreme Court in popular media, they are commenting about it. So I don't know, what are you gonna do with all of the infamy that this has now accrued to you?

0:09:35.6 Jay: I think it depends a little bit on the outcome of the Fetid Four, the Citizens United Fetid Four, as we're calling it. They're not actually an official sponsor, but just in recognition of all the hard work they do to make the worst Supreme Court Justice bracket possible. My personal pick, I don't know, the results will be out by the time this posts. I've got Taney and Scalia in the championship, sort of a classic match-up between a Justice who started a civil war over racism, and a Justice whose greatest regret was that he failed to do so during his life.

0:10:10.9 Peter: That's gonna be a tight one. I think that's gotta be the final two. Maybe Rehnquist could sneak in there, but it feels like a tight race, it feels like a tight race, and I'm excited.

0:10:21.5 Michael: I'm gonna weigh in. I don't think he's gonna win, but I'm voting for Field over Scalia. I hate that guy. I've talked about his immigration decisions, the Chinese exclusion decisions on this podcast multiple times, because it's some of the most reactionary shit the Court has ever done and remains, justifying the Muslim ban and things like that, so, yeah, I hate that guy's guts. Plus, I don't want to give Scalia the satisfaction posthumously of lording over everyone. He would love this shit.

0:10:53.6 Jay: Winning the Federalist Society cup.

0:10:55.3 Michael: Right, exactly.

0:10:57.3 Peter: That's true. He would really enjoy it.

0:10:58.9 Josie: I gotta say, part of the reason I have Rehnquist over Scalia here, it's because at least Scalia was sometimes a little bit funny and sometimes like had some okay opinions for defendants sometimes, right.

0:11:17.6 Michael: Yeah, he had like Crawford about testimony and confrontation, right?

0:11:21.5 Jay: Is there a button I can press to kick Josie off this recording or how does that work?

0:11:23.6 Josie: One of the things I really love about this bracket is not only is it laugh out loud hilarious, but also I learned more about the Supreme Court reading this bracket that I literally did in all three years of law school, not an exaggeration. That's probably says more about me than it does about my education, but if you're into the Supreme Court at all and you want a laugh too, yeah, I recommend.

0:11:48.7 Michael: In the early rounds, I was like, I'm just gonna vote for anybody who was like an open segregationist or in the Klan, personally engaged in voter suppression of minorities, and even that doesn't decide some of the match-ups there.

0:12:03.8 Jay: Yeah, you're gonna have to be more specific.

0:12:05.7 Josie: Yeah, my favorite were the ones that were like... Wrote six decisions in 30 years, really lazy, but did write this really fucked-up racist decision that defined everything for [0:12:17.2] ____. Like it was like the worst, but not funny, not smart, didn't get their work done and also managed to do something extremely fucked-up.

0:12:26.5 Peter: Well, I think my concluding thought is anything that makes the absolute hacks at SCOTUSblog feel just a little bit insufficient and uncomfortable makes me feel better. One other quick note about the SCOTUSblog bracket before we talk about the case, is that it didn't include for best Justice any of the current Justices because, again, SCOTUSblog has employees who argue before the Supreme Court and they're such fucking suck-ups that they didn't want to like... They didn't want to weigh in on any current Justices, which is just... I mean, it's just unbelievable to me.

0:13:04.0 Michael: I think that's great, though. I think that's emblematic of why our podcast works in a way that most Supreme Court coverage doesn't, right?

0:13:11.8 Peter: Yeah.

0:13:12.6 Michael: We're not worried about that.

0:13:13.6 Peter: Because we are not successful.

0:13:15.3 Michael: Yeah, that's right.

0:13:16.4 Jay: Can I add one more quick thing on this, just as an aside, there was lots of people who are like, you just have to think about what they did on the Court and not what they did outside of the Court. One thing I really tried to do in putting this bracket together is not only focus on some of their worst, most infamous opinions, but also the Justices' lives, their careers, stuff they did outside the Court. And not everyone agrees with evaluating Justices in this way, but in my view, you can't really meaningfully evaluate someone's jurisprudence outside the context of their beliefs, their ideology, their politics.

0:13:54.6 Jay: To use an example that, Michael, you touched on earlier, you can't fully understand William Rehnquist's equal protection and voting rights jurisprudence without knowing that as a Supreme Court clerk, he wrote a memo arguing that Plessy was right and should be affirmed, or that as a young lawyer, he led a Republican voter suppression initiative in Phoenix in the 1960s, and witnesses say that he personally participated in challenging the qualifications of Hispanic voters at polling places. He was appointed to the Court like a decade after that.

0:14:29.5 Michael: He also had a camera and they were photographing people voting, which I think as a minority in the '60s, having your picture taken going to the polls is very clearly intimidating. It's a way of saying like, we know who you are, and we can find you whenever we want and punish you for this, right. And his defense was, well, there was no film in the camera, we weren't actually taking photos, we were just scaring them.

0:14:56.5 Jay: Yeah, obviously, the people knew that too. They understood.

0:15:00.5 Michael: Right, yeah, for sure.

0:15:01.5 Jay: Or like to take a more recent example, you can't evaluate Brett Kavanaugh's like alarming flirtations with looking for ways to maybe over-rule election results without knowing that he worked on the Bush v. Gore recount battles in Florida in 2000, or his embarrassing Senate confirmation temper tantrums. The context is before he pivoted to the judiciary to help the Republican agenda while wearing a robe, he was in the Bush White House, he worked on the Starr report, he tried to help Congressional Republicans get Bill Clinton impeached.

0:15:31.7 Jay: I feel like looking at Justices in a vacuum just based on the opinions they wrote or joined on to, it misses this context, and it reinforces this perception that Justices... Again, I'm sure I'm the first person on the podcast to bring this up, that Justices just apply the law, and to understand the politics of their decisions, you gotta understand their politics too, you gotta take that into account.

0:15:55.4 Peter: Alright, today's case is Bowles v. Russell. One complaint that you have perhaps heard about the law is that it is unconcerned with justice and too concerned with the rigid enforcement of useless technicalities. So I would invite you to imagine a hypothetical scenario: What is the most useless technicality that you can think of? What is the highest stakes legal scenario you can think of? If you said court filing deadlines and a murder trial, you are a winner. In this case, Keith Bowles was convicted of murder and he wanted to appeal, and the court granted him 17 days to file his notice of appeal, but there was a problem: The Federal Rules of Appellate Procedure only allow for 14 days. The court had made a mistake.

0:16:45.3 Peter: So when Mr. Bowles filed his notice of appeal, even though he met the deadline the court gave him, he was, under the rules, three days late. So the question is, if the court fucks up the deadline it gives you and you trust the court's deadline, are you good, or is this minor confusion about appeal deadline so important that your conviction for murder must now stand. And of course, the Supreme Court in a 5-4 decision written by Clarence Thomas holds that even if a court gives you the wrong deadline, you're still responsible for knowing the right one somehow, and Mr. Bowles therefore cannot appeal his murder conviction.

0:17:30.5 Peter: This case crystallizes a lot about conservative jurisprudence with respect to criminal defendants' rights, especially. It's about the rigid adherence to rules and technicality without regard for the human impact, and it's in a lot of ways a simple case and in others sort of a deep peer into the conservative mind. Michael, I believe you're on background duties today.

0:17:56.9 Michael: I am, I am. I'm excited to do my best Rhiannon impression and be found wanting, but I'm gonna give a good effort here. We're gonna talk a little bit about the history of the murder trial itself, and then we're gonna go down a little bit of a procedural rabbit hole, but if you bear with me, I think you'll see that it's worth getting into these details.

0:18:17.0 Michael: So if you read the Supreme Court's opinion, your eyes will probably glaze over trying to parse through its jargon about when deadlines are jurisdictional versus when they are claims processing, which all just comes off like a bunch of nonsense to anyone but the most ardent Supreme Court watchers. Ut as a first order issue, like Peter said, this is a case about a man accused of murder and his allegation that he didn't have a fair trial, and so I want to start with that. Keith Bowles was a young black man living in Cleveland, Ohio, and on August 22, 1998, he and a group of friends drove to a nearby town to see a show, they're going out for the night. Two of the friends that were with him were these two guys named Richard Hayden and Damon Anderson.

0:19:05.9 Michael: After the show, the group decided to go to an after-party. But on the way, they came across Hayden's cousin, who was in a bad way, he looked beat up, he was yelling at some cops outside some bar, so they managed to connect with him a little bit later and learned that he had been jumped and beaten by several men, and he knew who they were, at least some of them, he knew who had attacked him. So instead of going to the after-party, this group of guys decided to find the assholes who beat up their friend and get some revenge. Which just as a note, this is... I am 99% sure this is how I and my friends would have handled the same situation when I was in my early 20s. Like, absolutely, if somebody was like, "Dude, these assholes just fucking jumped me," we'd be like, "Where are they? Like let's fucking roll."

0:19:54.1 Peter: Time to defeat them in an argument.

0:19:56.3 Michael: That's right, of course. And even more so, I think, given that these are black men, these are young black men, this is a white suburb, and it seems like the cops already knew about this and were ignoring it, like the guy was beaten up, was like arguing with the cops, so it's obvious, you're not gonna get any satisfaction by filing a police report, right. So they find one of the guys, they saw he had a gun, and so they were like, "Oh, let's just keep driving, fuck that." And then they find another guy who they didn't know, but believed to be one of the assailants, and so they go for it. And it's undisputed that Bowles pushed this guy to the ground, Bowles says it's because he suspected this guy, his name was Ollie Gipson, had a gun.

0:20:38.8 Michael: There's some dispute as to whether Bowles kicked Gipson in his stomach while Gipson was on the ground, and if so, how many times. But everybody agrees that Bowles left and was sitting in the car when Hayden, the guy whose cousin had been beaten, setting up this entire chain of events, kicked and stomped Gipson in the head multiple times, fracturing his skull and killing him.

0:21:01.7 Michael: Now, because Ohio has a felony murder statute, all three of Hayden, Bowles and Anderson were on the hook for Gipson's murder. We've covered felony murder before, but as a reminder, states with felony murder statutes allow anyone involved in a felony to be charged with murder, if anyone dies during the course of that felony in any way, regardless of their involvement in the actual murder, regardless if somebody had a heart attack from being scared or whatever. Like if somebody dies in the course of a felony, everybody involved is on the hook for murder. This actually puts Bowles in a bad spot beyond being on the hook for murder, because according to him, all he did was push this guy to the ground.

0:21:44.2 Michael: And so he wanted to fight the charges, he's like, "I didn't murder anyone. I barely touched this guy. I pushed him to the ground." But Anderson, who had been beating the shit out of this guy, and Hayden, who everybody agrees killed this guy by stomping on his head, they're going to jail and they know it. So in exchange for lesser sentences, including Hayden getting involuntary manslaughter, they both testified against Bowles. And so ultimately Bowles, the least involved in the crime by all accounts, was convicted of murder and sentenced to 15 years to life.

0:22:16.3 Michael: At sentencing, he claimed his trial wasn't fair for many reasons, including which that it was an all-white jury and, again, as I mentioned before, for some context, it's like a black man from urban Cleveland being tried in a lily-white suburb of Cleveland, so just based on those facts, you know how this trial was gonna go, right. He appealed his conviction, claiming the felony murder statute was not constitutional. The State Appellate Court and the State Supreme Court both denied his appeal. So in 2002, Bowles filed what's called a petition for a writ of habeas corpus in federal court.

0:22:56.8 Michael: And so, just as a quick primer on habeas corpus, this isn't a direct appeal, it's not even a criminal trial, it's a civil claim, a lawsuit filed in federal court attacking the trial itself, saying that your trial was like in some way constitutionally deficient, you didn't get your due process. An example might be that the Constitution guarantees you the right to be defended by an attorney, to have an attorney present for your defense, so if you didn't have one or if your attorney was so bad that it basically was the same result as not having one, then a habeas court can throw out the results of that trial and grant you a new one.

0:23:34.6 Josie: They never do, but they can.

0:23:36.8 Michael: Right. In theory. In practice rarely is that a winning claim. In this case, Bowles raised a lot of claims, but I want to mention ones relating to the jury, because I think in modern light, they might sound more persuasive than they did in 2002. Bowles complained that one, as I mentioned, he had an all-white jury; two, as the third of the three men being tried for the crime, the jury pool had already been exposed to all the details of the crime in the news. This is a smaller suburb and these are like high profile trials, so that there's no way he was gonna get a jury pool that didn't come in with preconceived notions; and three, that one of the jurors was the brother of the Chief of Police.

0:24:25.5 Peter: Come on, man.

0:24:25.6 Michael: I don't know, I read those and I was like, I think those are good complaints.

0:24:30.4 Josie: Makes sense.

0:24:32.0 Michael: The District Court rejected all his claims, those three and 12 others that he raised, and entered final judgment, at which point Bowles had 30 days to file an appeal, and he didn't because the district court fucked up and never told him it had entered a final judgment. So Bowles had to file a new motion asking to allow him to file an appeal despite missing the deadline, and that's allowed. There's a whole set of rules called the Federal Rules of Appellate Procedure, which set out when and how appeals are taken in federal court, and there is a rule allowing for an extension in just these sorts of instances.

0:25:08.6 Michael: The rule says, look, if the district court fucks up, if it doesn't give you notice that this 30 days have started running, it can re-open this period and give you an extra 14 days to file an appeal. So if the court agrees with Bowles that it was its mistake, it can give him an extra two weeks to file a notice of appeal. And so the district court does, it agrees with him, it does just that. And on February 10th, 2004, it issues an order saying, yeah, Bowles does get an extension of his deadline, 14 days after February 10th, it says February 27, you have until February 27. Now...

0:25:51.4 Peter: I'm no mathematician.

0:25:54.8 Michael: Right, 10 plus 14 is very clearly 24 and not 27. But so what? Just because the order is signed on the 10th doesn't mean it was entered on the 10th, and I don't think it was incumbent on his lawyer to go check the federal rules. He got an order from the court saying, hey, you have until February 27th to file a notice of appeal, and on February 26th, in compliance with that order, he did, and then the appellate court said, sorry, bud, that's late, you only had until February 24th, and dismissed his case. So that's how we get to the Supreme Court.

0:26:39.2 Michael: And the big point I want you to take away from this is, this is a case about a man who said all he did was push some guy to the ground and maybe kick him in the stomach once before walking away, and he's staring at potentially life in prison. He's been convicted for a more serious crime than the other two men, who everyone agrees were far more responsible for that man's death, he's been screwed by the district court on a filing deadline for his appeal, not once, but twice, and this is literally his last chance. There's nowhere else to go after this. All his appeals are done and his only hope is to have his habeas petition considered. So that's the context for this case.

0:27:17.6 Peter: So the law here is relatively simple. The Federal Rules of Appellate Procedure are, again, a set of rules that govern procedures for appeals in federal court. The rules give you 14 days after a conviction judgment to file your notice of appeal, which is just a document that formally signifies your intent to appeal a conviction. Bowles filed his notice after 17 days, because that was the deadline the court gave him, and he had no reliable reason to believe that the deadline was incorrect. So the question is, does that deadline matter? It was the court that fucked it up, not him. Does it matter? Is he good or not?

0:27:57.0 Peter: And what the Supreme Court says is, no, he's not good. He filed after the 14-day window. So even though he was relying on what the court told him, he was still late. The argument Clarence Thomas, who writes the majority, makes here is pretty simple. He says that deadlines are jurisdictional, meaning that the appeals court only has jurisdiction to hear your claim if you properly meet the deadlines. If you miss the deadline, the court has no jurisdiction and therefore cannot hear your case.

0:28:30.0 Peter: Now, if you're not a lawyer, I don't think you need to worry too much about what exactly jurisdiction means legally. Just know that if a court does not have jurisdiction over a case, it cannot under the law hear the case, that is the rule. So the majority is saying, look, we're past the 14-day deadline created by Congress, which means the court has no jurisdiction and can't hear the case, even if we all agree that this was an accident. And that means your appeal gets tossed out, effectively, and the murder conviction stands. And my response to that, and I think the gist of the dissent's response to that is, are you fucking kidding me. Are you fucking kidding me with this shit?

0:29:16.8 Michael: It's such bullshit.

0:29:18.4 Peter: The first thing to address is that the majority makes this decision seem like almost automatic, like you missed the deadline, so no matter why it happened, the court has no jurisdiction. Nothing we can do. But that's not really true. As the dissent points out, jurisdiction is not so black and white. The cases that Thomas cites to portray this as black and white are actually outdated, like at this point, 50-year-old cases that have been effectively overturned in the prior years. And in reality, the Court had consistently stated in more recent cases that deadlines are not jurisdictional, but are what's merely called the claims processing issues, essentially just a matter of logistics is the best way to understand that.

0:29:57.3 Peter: And Thomas just kind of completely ignores that, substantively ignores that, and even putting the Court's precedent aside, 'cause I don't think we need to get to precedent here, this is a pretty common sense issue, a court's jurisdiction is about what cases they have authority to hear. The simplest form is like a court in New York can't hear a case that took place entirely within New Jersey, but there are also non-geographical types of jurisdiction and more complex types of jurisdiction, like federal courts have jurisdiction over a case if it alleges a violation of federal law, or like family courts only have jurisdiction to hear family law disputes, they can't preside over a securities fraud case or a criminal case. That's what jurisdiction is, jurisdiction is about whether a court is able to hear a claim, and that's not the same thing as filing deadlines. It's just not.

0:30:51.1 Peter: And I think that a lot of lawyers will kind of understand almost intuitively how ridiculous this is, but it's difficult to impress upon non-lawyers just how kind of far this deviates from what jurisdiction is meant to be. It just does not make sense to think that a court's legal authority to hear a case rests on when you file a document. Filing deadlines are just sort of logistical rules that help a court run smoothly. It's not about jurisdiction. What the conservatives are saying here is that depending on a filing deadline, a court might have authority to hear a case one day and then not the next, despite nothing about the case itself changing. That is just bizarre.

0:31:33.6 Peter: I think it fundamentally undermines what jurisdiction is about, and I think what makes it more offensive is that most of the time jurisdiction is about what the proper court is, right, if a New Jersey court doesn't have jurisdiction and a New York court does, so be it, that just means the plaintiff has to bring their case in New York, but they can still bring their case. Here, though, the result is that no court has jurisdiction over this appeal, it just can't be litigated at all. The dude's screwed. And pretending that that is a jurisdictional question when it is actually about the denial of any possible redress for a man convicted of murder is horrendous.

0:32:15.7 Josie: The other thing is that you would imagine that deadlines in the court system, right, like maybe some exist just to keep some semblance of order, but that in general deadlines should be in favor of the defendant. The defendant is the one supposed to have rights, and so statute of limitations, for example, which I've heard compared to filing deadlines as well, they have it on both sides, but those are two such remarkably different things. When you have the power of the state against one person, the idea that three days because the state gave you bad information is somehow unavoidable is such a perversion of the basic principles of what we imagine on the system to be built on.

0:33:00.4 Peter: Alright, I think this would be a good time for a break, after which we will get back to all the various perversions of the system.

0:33:09.6 Michael: Hey, everybody, thanks for listening to 5-4. We want to give a big old shout-out to our Patreon listeners, we hope you're loving the premium episodes and that you're recovering from your hang-overs from all our members-only events. If you're not a Patreon member, there's a whole other world of 5-4 stuff waiting for you, like our incredibly raucous Slack channel, discounts on our merch, and lots of members-only episodes and events. You can support us by visiting patreon.com/fivefourpod, you gotta spell out the five and the four. Thanks so much for listening.

0:33:49.1 Michael: Okay, and we're back and there was something I wanted to talk about, which is a specific argument Thomas makes, that's just so profoundly stupid. Like really stupid shit. He has this argument, he says, well, look, only Congress can change a court's jurisdiction, and that's true, Congress gets to decide what the lower courts' jurisdictions are, and even to some extent, what the Supreme Court's jurisdiction is. So that means there are court-made rules that are not jurisdictional, and everybody agrees when courts make the rules, those are not jurisdictional. And so Thomas says, well, look, if court-made rules are not jurisdictional, then congressional-made rules, a-ha, those must be jurisdictional.

0:34:30.7 Michael: And that's like both as a logical matter and as a factual matter incorrect, like just absolutely incorrect.

0:34:40.2 Peter: He's confusing necessary and sufficient conditions. I know that a lot of the time we get critiques, people are like, oh, they're just whining about arguments, but they don't give their own arguments, so that is the specific fallacy that Thomas is implementing here, FYI, confusion of necessary and sufficient conditions. You nerds can write that down and figure it out later.

0:35:00.4 Michael: There is a name for this in formal logic too.

0:35:03.3 Peter: Probably.

0:35:03.8 Michael: Is it modus tollens? It might be modus tollens.

0:35:03.9 Jay: Oh, my God. You're a nerd too.

0:35:05.0 Michael: I don't remember. That was a long time ago. In any event, just as a factual matter, Title 7 has a deadline for filing a petition. That's not jurisdictional, it's created by statute, like he's just wrong, it's just not the case that just because Congress creates a deadline means it's jurisdictional. So again, there's a right answer here, and Thomas doesn't have it.

0:35:29.8 Josie: Shocking.

0:35:32.0 Michael: Yeah, shocking. Yeah, who would have guessed?

0:35:35.9 Peter: The fundamental contradiction of this case is that the Federal Rules of Appellate Procedure are meant to facilitate the practical function of the courts. You need a set of rules to govern who can do what, when and when they should do it, just so things sort of operate smoothly. And this decision is sort of deeply impractical. It doesn't do anything to promote the efficiency of the courts, which is of course the primary purpose of filing deadlines, and it leaves a man convicted of murder without any avenue of redress, through no real fault of his own. It just doesn't serve a real function, and that's what's so sort of bizarre about it, to interpret the federal rules as almost sort of without mercy and without purpose and function.

0:36:16.2 Michael: I'll tell you how it promotes the efficiency of the courts in the conservative eyes. Seriously, it's not a joke.

0:36:22.8 Peter: No, I know.

0:36:23.9 Michael: In their idea, the efficiency of the courts is as few cases as possible, right, as few appeals as possible, as few habeas petitions as possible, that's what efficiency means and so, yeah, fuck him, get him out of court.

0:36:38.1 Josie: 100%, yeah.

0:36:38.2 Jay: Yeah, there's a question here about who the legal system is for and who rules are for. And sort of to Michael's point, Thomas and the conservatives don't view the criminal legal system as set up for Bowles as an opportunity for him to vindicate his rights. It's a tool for just cycling through criminal defendants as quick as possible, so that like prosecutors and judges can know that their schedules are clear on Friday afternoon and they can go play golf together. There's also the question, like I say, about who their rules are for. In Clarence Thomas's mind, in the conservative mind, rules exist for people who, in their view, already follow the rules. And people who are within the criminal legal system, again, in their mind, criminals, they fall outside the scope, they didn't follow the rules.

0:37:26.7 Jay: And part of their punishment is that ambiguities don't get resolved or construed in their favor. The majority here doesn't think Bowles should benefit from the district court's incorrect application of a rule because they don't view Bowles as deserving of a chance at an appeal in the first place. It's just looking for the fastest way to keep people out of court rooms and locked up.

0:37:48.7 Josie: I think to the point about Thomas really viewing these people as criminals, you see this all the time in the system, where the perception is basically just like these people are trying to get one over on us. Just this perception that if you've been accused of a crime, you are always trying to get over on a technicality, as my granddad would say, and and you're guilty and you're trying to manipulate the system to ensure that you don't get punished, when actually, this is the point of the system. The entire point of the system is that you are not guilty unless the system can actually determine your guilt sufficiently under the rules and the regulations of this system.

0:38:27.9 Josie: So there is this other part here which is like who knows how he would have felt if the defendant was white. But I can tell you like, it would be surprising to me if this happened if he really perceived the defendant as innocent, if all of this wasn't all some illusion that he had more sympathy for the defendant. The second thing I was just gonna point out was like, when we talk about efficiency, it's totally true that the efficient thing here is less habeas petitions, less access to the courts, less access to appeals. But on any sort of evaluative level, if you think about who you want holding the burden of getting a mistake, you want the system to have that burden.

0:39:08.8 Josie: If the system makes a mistake, the system should pay for the mistake. That is the only reasonable way to run a court system. This shouldn't even be controversial. And if you want to talk about efficiency, probably the least efficient thing to happen was for this fucking case to go all the way to Supreme Court, instead of just letting him file the petition and keeping it moving. We wouldn't even have to be here. And so there is something just ironic about the way that they interpret efficiency, although I do think probably long-term if efficiency, if that is your concern, for your petitions, he succeeded.

0:39:44.7 Michael: Yeah, and just to I think both those points, when you were talking, the first thing I thought of is the way like you said, these processes exist precisely to be used, right, that's why they're here, is to make sure everybody's constitutional rights are protected. But it's always framed like in popular media as abuse of process. There's no valid use of process, anybody taking an appeal or going for a habeas is just treated as abuse, these guys just won't stop. Like why won't he accept his life sentence for pushing a guy to the ground and kicking him in the stomach, right. That's some ridiculous thing he should be complacent about.

0:40:25.5 Peter: And they would never frame felony murder, the fact that he didn't actually commit the murder as a technicality, when of course it is. Technicalities are things that defendants use to get out of liability, they're not something that the prosecution uses to throw people in jail. I think there is a deep connection between the reasoning that Thomas is employing here and how conservatives conceive of the world. Thomas is using jurisdiction here as obfuscation, what he's trying to do is make it seem like his hands were tied, like, oh, the court didn't have jurisdiction, couldn't do anything about it.

0:41:00.9 Peter: And he has to ignore a bunch of precedent to do that, so he ignores a bunch of precedent, and the reason he's going to these lengths is because the real argument he wants to make is too offensive to make. The real argument the conservatives want to make here is that the rigid application of rules about filing deadlines is more important than the right to appeal, and there's not much more to it than that, there's nothing else that justifies this result per se. Their position is tough shit, tough shit, dude, that's that, we found a reason to deny your appeal and we're gonna do it.

0:41:32.4 Peter: I've mentioned on the podcast before without much elaboration that conservatives are sort of ideologically drawn to rules. And I want to expound on that a bit. Conservatives often show an inclination to adhere to and defend the importance of rules. There's research that shows this in various forms, Bob Altemeyer's research on right-wing authoritarian personalities, for example, shows that those personalities are less likely to report breaking rules in their own lives and that they place a high value on strict rules and obedience. George Lakoff's work on ideology and family dynamics has similar findings. Thomas Blass's research also showed that conservatives value obedience to rules and authority.

0:42:10.5 Peter: And even putting the research aside, I think if you're familiar with conservatives, this seems somewhat obvious to a degree, right. And the more interesting question is why. And to my mind, the best explanation is that, generally speaking, rules flow from hierarchy. Formal rules are almost inherently imposed by people in power, people from the top of the social order, and thereby serve the purpose of protecting and insulating that social order. And when your entire ideology revolves around maintaining your place atop social and political hierarchies, that makes rules pretty important, and the strict enforcement of rules necessary to your political project.

0:42:48.0 Peter: So maybe that goes some way towards explaining why the conservatives are so inclined to rigidly apply a stupid rule here, but I don't think it's the full picture. The other part of this is that I think conservatives genuinely revel in the punishment of people who violate rules. There's sort of a sadistic enjoyment they get from watching the machinations of rules grind up the weak, and the example, I think, makes this the most topical was police shootings. How many times have you heard conservatives justify a police shooting by saying that the victim should have done a better job of following orders?

0:43:26.0 Peter: And it doesn't matter how sort of nonsensical the orders might have been and how many times have you seen them, just like fucking like smirking about it, right. Like, well, if you only... If you'd just followed the orders, you wouldn't have anything to worry about. Not only are they not particularly fazed by the fact that non-compliance with police orders is being punished by death, they embrace and enjoy the violence of it, right. And if you ask them to put themselves in the shoes of the person being shot for not following orders fast enough or being denied the right to appeal because they were given the wrong deadline, they can't actually do it, they don't know how, because if rules are meant to protect the social hierarchy, and they in their minds are at the top of the social hierarchy, so the rules protect them.

0:44:08.5 Peter: The rules are outward-facing. They can't conceive of being punished for them, they can't conceive of being on the wrong side of the rule, because to do so would invert their entire conception of why the rule is there.

0:44:20.9 Michael: This is how you might find yourself breaking into the Capitol building and taking selfies sitting on the Speaker of the House's desk, right?

0:44:29.0 Peter: Absolutely.

0:44:31.1 Jay: Just a hypothetical.

0:44:34.5 Michael: No, but seriously, again, there are people there who were saying after the fact, how are we getting tried for this, this isn't what the rules are for, they're supposed to be shooting the other people, right, they're supposed to be shooting BLM protesters, not us. That's a real quote from someone.

0:44:51.0 Peter: Yeah, the other side of that coin is the reaction from liberals who I think are failing to understand the reactionary mind, saying, well, I thought you were about law and order. No, they're not, they're not about law and order, they are about a very specific conception about what law and order looks like.

0:45:03.9 Michael: There's a specific order that they believe in.

0:45:08.1 Peter: When the rules are being applied to them, they are inherently unjust in a way, because the rules are meant to keep everyone else contained. And I think that goes a long way to explain not just why the conservatives here are so sort of enamored with the rigidity of this rule, but why they are deeply unsympathetic to the victims, because they genuinely cannot place themselves in the victim's shoes, it is sort of antithetical to their psychology.

0:45:38.2 Michael: That's right.

0:45:39.1 Jay: I want to talk a little bit about two practical implications of this opinion. The first is that we've talked about what a silly and obvious embarrassing fuck-up from the District Court happened that got us to the Supreme Court in the first place. And Thomas just kind of glosses over this in the opinion, he characterizes the distinction as inexplicable. And I think that is super wrong. So there's this notion that perhaps it was a distinction between the date that the order was signed and the order was entered, right? When I first heard this, I went even stupider, so the correct date should have been February 24th, but the order said February 27th.

0:46:25.6 Jay: So I thought, what are we talking about? Early 2000s, right? This is a clerk who's like puttering around on AIM and just whiling away the hours in chambers until they can collect their law firm clerkship bonus. And they're over on the number keypad and they hit the 7 when they should have hit the 4. Like this is obviously a mistake. And Thomas just completely ignores that. He does not grapple with how this could have happened, because if he does that, the result is just unconscionable. And then the second thing I wanted to point out, a little practice tip for folks, I did not practice law for that long, but one thing I do know and that I was very good at is when there's a deadline for filing something, you're filing the day of the deadline, 11:59 PM if possible.

0:47:15.9 Jay: And Thomas's opinion just completely ignores how litigation works in practice. You're always going to file on the last day the judge gives you.

0:47:27.3 Michael: I was gonna say, I was just reading this, I was legit impressed that he filed it a day early, I was like, wow.

0:47:33.2 Peter: It's almost unusual. There's no exaggeration of what Jay is saying. I did litigate for a few years and you file on the last day, it's almost like built into your brain, why wouldn't you take the extra time to refine the brief, right. The fact that he filed a day before is extremely impressive, in my mind.

0:47:52.6 Michael: It reeks of someone being like, man, we already fucked up with the last deadline because of the district court, we have to make sure we get this in on time, like we have to. We can't cut it close and risk some sort of error, so we're gonna do it a day early.

0:48:04.8 Peter: I think something that's sort of bubbling under the surface here is Clarence Thomas barely practiced law. I mean, he was like an actual lawyer for a couple of years, I think it was eight total years until he was at the EEOC, some of which he was like a staffer, which is also a not a real lawyer. So he, at this point is, what, 30 years removed from being an actual practicing lawyer of any type. The decision reeks of someone who never really litigated. And the idea that these deadlines should be like just brutalizing people who violate them, I mean, almost literally, it's something that no one who actually consistently practices law would ever think.

0:48:48.3 Michael: And to Jay's earlier point, when I worked in a court, that shit's so outdated. Yes, you have big chunky keyboards with the number lock and the key pad to the right where you could easily click a 7 instead of a 4 because they're right next to each other. I had to write my stuff on Word Perfect, not Microsoft Word, 'cause that was the only program at the courthouse used...

0:49:15.4 Jay: Michael, your listeners do not know what that is.

0:49:19.2 Michael: Exactly. It's like the websites are optimized for Netscape Navigator still. It's like unreal. So yeah, absolutely, this reeks of just like a stupid typo.

0:49:29.3 Jay: And when you're a practicing lawyer and when your case is before the court, the law is not what the US code says, the law is with the judge in your case who is adjudicating your case and your client's rights says, there's no lawyer who is ever, ever going to fact-check a judge and be like, "Excuse me, I looked up the Federal Rules of Appellate Procedure, and I think this is wrong." What the judge says goes. And since the Supreme Court handed down this case, there have been people who have been denied relief based on more incorrect information provided by judges and their staff.

0:50:04.2 Jay: Like all due respect, all due respect to judges, famously lauded on this podcast, as I understand it, judges do all kinds of dumb bullshit, and the upshot of this is that now you're stuck with the consequences of their actions. And defendants who don't catch these fuck-ups risk getting punished for it.

0:50:25.7 Peter: And you're facing this sort of striking difference in how the defendant, who makes a, what you can maybe call a mistake in relying on a court's deadline, how they're treated, versus the court that makes the actual mistake and suffers absolutely no consequences at all.

0:50:44.4 Jay: Nothing.

0:50:45.5 Michael: Twice, twice. I can't get over the fact that they screwed him over on this standing twice. It's unbelievable.

0:50:52.6 Jay: Yeah, the court made this mistake and they as always suffer no consequences for it. So this is an early Roberts court case, it comes down, I think, two years after his confirmation as Chief Justice, and in retrospect, it really sets the tone for how the Roberts court was going to treat vulnerable people in the criminal legal system, and specifically I mean not giving a shit about them. So since Roberts took over, there have been some retreats from things like sentencing juveniles to life in prison without the possibility of parole, which... Congratulations. Big progressive moves. John Roberts, our centrist king.

0:51:33.4 Jay: But, this case is a little bit different. For cases that involve information asymmetry, a not powerful person facing the full power of the state, the court is really unsympathetic, it's just constantly slamming doors in people's faces. Last year, I wrote about a series of decisions that have come down since the Miranda decision, you have a right to remain silent, you have a right to a lawyer if you can't afford one, that have created these really hyper-technical rules for how people who are in the criminal legal system have to invoke their Miranda rights in order to benefit from them.

0:52:08.8 Jay: The rule is now basically that you have to work up the courage as you're being interrogated or worse by cops, armed cops, to say, "Excuse me, officer, I am invoking my Miranda right to remain silent." I want to stress again that the right is one to remain silent and you have to speak to invoke it, or else they can just interrogate you for basically as long as they want. And Bowles is a lot like that. It takes advantage of this information asymmetry. It construes rights as narrowly as possible in order to render them more or less meaningless.

0:52:45.0 Michael: That's right, and I'm not Rhiannon...

0:52:48.7 Jay: What?

0:52:49.7 Michael: So I don't have the same research skills and access she does, but I did my best to find out what Keith Bowles' status is right now. The latest I was able to find was that as of June 2020, he was still incarcerated, I believe he had a parole hearing, but I don't know the outcome of that, or if he's still in jail or not, but well past his 15 years from 1999 now, for what is undisputedly from all accounts, pushing a guy to the ground and maybe kicking him a couple of times, 21 years and counting, I think.

0:53:24.2 Jay: Jesus. Good times or the best of times.

0:53:31.4 Peter: This is the vibe at the end of all of our episodes, Jay, we're all just like...

0:53:34.4 Jay: Staring blankly at the sky.

0:53:35.9 Peter: Alright, next week, special episode. I think we're gonna talk about the Biden Supreme Court Reform Commission. It's gonna be good. The Dems have started talking about reform, and so we figured why not, why not see what they're up to, check in.

0:53:54.4 Jay: I'm still waiting on my invitation, but I assume it...

0:53:57.3 Josie: Totally.

0:53:58.8 Jay: Yeah, the idea of being like a 24-year-old Senate staffer, who's like, "Hey, do we have any bloggers on the Commission? Can we get a blogger?"

0:54:07.3 Peter: Alright, Jay, Josie, thanks so much for coming on. We appreciate your time, and I expect that both of you will be on in the future.

0:54:15.8 Josie: Well, luckily, I'm not gonna have as much to do in the near future, so I'll be here whenever you need me.

0:54:21.7 Peter: That's what I'm talking about.

0:54:22.0 Josie: Or when you don't.

0:54:24.0 Jay: You're just gonna be recording a normal episode and you're just gonna get the little pop-ups that are like, "Jay and Josie are asking into the Zoom meet."

0:54:31.1 Michael: Yeah, once you have Rachel's personal Zoom link, it's just she's gotta know when we're recording and you're there.

0:54:35.2 Josie: We have your Zoom link now, motherfuckers. We've just got to check in every hour, just to see if it's time. Rachel's like, "I'm talking to my parents."

0:54:45.7 Peter: We appreciate both of your time. It was fun.

0:54:50.5 Josie: Thanks, guys.

0:54:51.7 Jay: Thanks for having me.

0:54:51.8 Peter: Follow us on Twitter @fivefourpod and subscribe on Patreon for bonus content, etcetera, premium episodes, access to our Slack, discounts on merch. The benefits are endless. Patreon.com/fivefourpod, all spelled out. We will see you next week.

0:55:11.5 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY and our theme song is by Spatial Relations.