One of the consequences of so many years of GOP occupancy of the White House - and Ralph Nader's enduring legacy for the 2000 fiasco - has been the solidification of Right Wing Control of the Supreme Court. Two recent rulings suggest just what that means and predicts what will come next.
Consider Bolles v. Reynolds. A man convicted of murder filed an appeal in Federal Court. The judge in the case told his lawyer that he had 18 days to present the Brief to the Court. Seventeen days later the brief was filed. Only the judge erred and the attorney didn't catch it. The deadline set by the Court was 14 days so the appeal was late. Cut to the Supreme Court. In a 5 - 4 decision the Supremes ruled that, in effect, it was tough nugies. A deadline is a deadline and you missed it! Have a nice life (sentence)! Note here that they didn't rule on the underlying appeal - I don't know if was valid or not . No, they just said that arbitrary deadlines were more important. And they had done that earlier in a sex discrimination case in the workplace where a woman filed suit over an equal pay mkatter. But, because she did not know of the discrepency until after 180 days of its inception and the statute said that action had to filed in that period she was shut out of court too. Its too bad that you were unaware but a deadline is a deadline. Better luck next time! That was 5-4 too. And in both cases it was the same five - Roberts, Alito, Kennedy, Scalia, and Thomas. There were blistering dissents in both (Souter in the former; Ginsberg in the later) but so what?
Of course this has been the wet dream of those conservatives who belong to the Federalist Society and make a fetish out of "Finality." The late Chief Justice Reinquist always complained of the number of death penalty appeals. He wanted a - pardon the expression - "Drop Dead" date after which no more appeals could be heard. And if new evidence, say a DNA test, proved the innocence of the defendant? Didn't matter, said the chief. Finality was more important that saving a innocent man from the needle. What a guy!
Soon this court will start hearing cases on those Tribunals, including claims of torture. I can imagine how they will rule. I'm sure the "24" scenario will be bandied about. What if there was a ticking A-Bomb somewhere and Jack Bauer needed to know real bad? What do you think they'll say?
Funny thing about this. Andrew Sullivan recently wrote about Nuremburg and torture. Remember those trials? Well back in 1937 the Gestapo and the Sicherheitsdienst (SD) produced a manual entitled "Verscharfte Vernehmung" which translates as, believe it or not, "Enhanced Interrogation Techniques." And that manual actually prohibits some of the stuff that the CIA and the "Contractors" use at Abu Gharab and Gitmo. (Ever think you'd hear that the Nazis were more humane than the US Government?). And the use of the most serious methods had to be approved by the head of the SD - old Reynard Heydrich - himself. Imagine Alberto Gonzales or Michael Chertoff having to sign off personally.
At Nuremberg the "Ticking Time Defense" was presented. And rejected. As Sullivan notes several people were hanged for this crime. And recently a surviving prosecutor from those trials wrote in the NY TIMES that the Bush Administration was in violation of the precepts set down there.
But I don't think Bush and Rumsfeld and Cheney will be taking a powder like that DINA guy. No, I bet the court's got their back. Still, if I were them I wouldn't do much traveling outside of Albania after they leave office. There is that nasty Pinochet precedent.
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