Michael Dorf has,"The Supreme Court's Most Kafkaesque Decision: Penalizing a Criminal Defendant for Relying on a Court's Official Statement of the Due Date for His Habeas Corpus Appeal," at FindLaw.com.
Last week, in Bowles v. Russell, the Supreme Court held that a federal appeals court had no jurisdiction to hear an appeal from the denial of a habeas corpus petition because the notice of appeal was filed two days late--even though it was filed one day before the date that the federal district judge had (mistakenly) told the petitioner that it was due. As a consequence of the ruling, Keith Bowles loses his one chance to have a federal appeals court correct what he alleges were errors resulting in his murder conviction and sentence of fifteen-years-to-life in prison.
Of course, no legal system could function without deadlines, and sometimes missed deadlines unavoidably result in miscarriages of justice. However, the majority opinion in Bowles--written by Justice Clarence Thomas--appears to go out of its way to avoid doing justice. It is the reductio ad absurdum of legal formalism. It is, as I argue below, almost literally Kafkaesque.
And:
The facts and circumstances of the Bowles case are strikingly similar to a chilling allegory in the penultimate chapter of Franz Kafka's dark novel of the bureaucratic state run amok, The Trial. The protagonist, K, stands accused of an unnamed crime in a court system with enigmatic procedures. When K stumbles upon the prison chaplain, the latter explains to K that he has been naïve in his approach to the law.
The chaplain tells a story of a man from the countryside who comes to the door of the law, only to be told by the doorkeeper that he can't be let in at the moment but it's possible that he could be permitted entry later. The man waits before the door for years, until as he is dying, he asks the doorkeeper why, given that everyone wants access to the law, no one but he has come to the door during his many years of waiting. The doorkeeper answers: "Nobody else could have got in this way, as this entrance was meant only for you. Now I'll go and close it."
Like the man from the countryside, Keith Bowles was told by a doorkeeper to the law--a federal judge--just what he needed to do to gain access. For following those instructions, he was repaid only by having the door to the law shut in his face by the Supreme Court.
The Court split 5-4 in Bowles along what are conventionally described as conservative-liberal lines, but in this case "conservative" seems a poor description for the majority view. Opposition to arbitrary exercises of power by the bureaucratic state has been one of the hallmarks of the conservative tradition in Anglo-American thought for over two centuries.
The majority opinion in Bowles would be better described as statist than conservative. As Justice Souter wrote in dissent: "It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch."
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