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Term Limits on the Supremes

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Message Jayne Stahl

For many, the idea of term limits for members of Congress is a good one, and three terms sounds about right. But in light of Thursday's draconian ruling by the Supreme Court, as well as other recent rulings, it might be time to consider imposing term limits on Supreme Court justices, too.

Yesterday, consistent with what appears to be a trend, the Supreme Court ruled 5 to 4 to throw out the challenge to his murder conviction by an Ohio inmate, Keith Bowles, who was sentenced to 15 years to life, back in 1999. Mr Bowles sought to appeal his sentence on constitutional grounds, but the federal court denied his application due to a technicality---he was 3 days late in filing his papers. After being denied on first appeal, he reopened the case years later, and a federal district judge erroneously gave him 17 days instead of 14 to file. So, his appeal was thrown out of appeals court as he passed the deadline, and the Supreme Court upheld their ruling which precluded Bowles from legal remedy to challenge his sentence. Bottom line: regardless of whether Mr. Bowles deserves to do the time he was given, his Eighth Amendment appeal was tossed because of a mistake made by a federal judge, and he missed out on his legal right to appeal. (NYT)

The decision of the Supreme Court to uphold the U.S. Court of Appeal ruling was, in a word, callous, and calluses are for feet not courts. Indeed, since the president's appointment of two new justices to the court, Chief Justice John Roberts, and Samuel Alito, recent rulings increasingly demonstrate that the hard, bony tissue which often develops around the ends of a fractured bone now exemplifies the body politic, too. After all, what is it if not crude and callous to deny someone the right to appeal because he was late for filing his paperwork due to a j]judge's mistake?

So it is then that we can no longer talk about the composition, but the decomposition of the Supreme Court in light of this ruling, as well as one, in mid-April, in which the court upheld the ban on partial birth abortions, also by a 5-4 ratio, again reflecting a slim majority. And, here, too,, we can thank the usual suspects, John Roberts and Samuel Alito, for a ruling that represents the first step in overturning the constitutional amendment that protects reproductive choice. But, whether you're for choice or against it, think that the inmate in Ohio was guilty and had no case for appeal, this literalism, and rigid adherence to technicality, may someday jeopardize your rights, too.

Notably, the minority justices, in the challenge to the Bowles' appeal, did not go gently into that good night. Justice David H. Souter argued that "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." (NYT) Souter also suggests that it would have been completely reasonable for the Supreme Court to make an exception, in this case, and decide to allow the appeal to go through and, in effect, "to rely on an order from a federal judge."

But, there appears to be a subtext at work here. By challenging the ruling by a district federal judge who clearly made a mistake in allowing for a few extra days in which to file the appeal, the majority in the Supreme Court asserts its power, its "unitary" judicial rights, not unlike the argument made by its colleague in the executive branch. So, not only is this a Supreme Court on steroids, but one that is setting the stage for validating only those district court rulings, down the road, that support its ideological mindset.

Justice Clarence Thomas, in speaking for his conservative colleagues in the court, effectively said that those who think the rules are "inequitable" should look to Congress to change them: "Congress may authorize courts to promulgate rules that excuse compliance with the statutory time limits." This is wishful thinking on the part of Justice Thomas as, since the midterm election in November, Congress seems to be capable only of passing water, not legislation.

While a prisoner in Ohio just lost out on his constitutional right to appeal what he thinks is a sentence that imposes "cruel and unusual punishment," fifteen years ago, the Supreme Court heard arguments about executing a Texas man who was convicted of murder despite the fact that new evidence surfaced, 10 years after the crime, which strongly supported his claims of innocence. Leonel Herrera was sentenced to be put to death for murdering two police officers. He was scheduled to be executed back in 1992, but won a stay of execution while his attorneys went before the Supreme Court to decide the constitutionality of executing an innocent man. While Herrera confessed to the murders, he later recanted. And, more importantly, his nephew came forward and told authorities that it was Herrera's brother, Raul Herrera, who killed the officers.

Not surprisingly, the Bush administration supported the Texas argument that the defendant had no "constitutional claim to a new hearing," (NYT) and it was the argument of a Texas assistant attorney general, at the time, Margaret P. Giffey, that it was not unconstitutional to execute someone convicted of murder, and sentenced to die, even if indisputable exculpatory ev idence were to emerge that vindicates him when that evidences surfaces after an established time limit. Ms. Giffey stood by Texas law which only allows new evidence to be considered when it is presented within 30 days before the trial ends. So, despite powerful proof that the state of Texas was executing an innocent man, and as a result of the court's refusal to reopen Herrera's case, 45 year old Leonel Herrera was put to death in Texas on May 12, 1993, while crying out that he was innocent until his dying breath.

This barbaric adherence to rules and regulations is not merely medieval, and callous, it is an insult to common sense, justice, and basic human rights. Moreover, this attitude from the highest court in the land is not only "intolerable," as Justice Souter contends, but flat out unacceptable.

While there is much talk, in progressive circles, about impeaching Mr. Gonzales, and Mr. Cheney, their terms as attorney-general and vice president are nearly over. On the other hand, we are only beginning to see the direction in which the newest members of the Supreme Court are taking us, and their rulings will affect, and shape, our constitutional protections, and civil liberties, for generations to come.

So, given that the majority justices, on the court, appear to be such sticklers for sticking to strict deadlines, and time limits, it seems only fair that they, too, comply with term limits. Justice Thomas was right to suggest that it is Congress that makes the rules, and it is Congress that must soon decide to put an expiration date on any appointment to the Supreme Court.

 (This article originally appeared on AlterNet)

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Widely published, poet, playwright, essayist, and screenwriter; member of PEN American Center, and PEN USA. Jayne Lyn Stahl is a Huffington Post blogger.
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