Archive for the ‘Guest Blogger’ Category

Professor Jim May’s Remarks; A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin

Written by webmaster on December 1st, 2010

JimMayAuthor: Professor Jim May [see photos from event] Bobby’s constitutional theories were cogent, unconventional and unsettling. Bobby was unafraid of toppling conventional wisdom and subverting dominant paradigms about constitutional evolution, interpretation, supremacy and review.  I’m here to discuss three ideas Bobby invoked in four articles collected in this special issue of the Widener Law Review.

  1. Constitutional Law Evolves Not Through Constitutional Theory But Instead Through a Process of Constitutional Revolutions
  2. Constitutional Truth Does Not Exist; Results are Instead Explained by Indeterminacy
  3. While Judicial Review Nourishes Democracies, Judicial Supremacy is Antithetical to them.

His legal scholarship displays a courageous Cervantesarian devotion to tilting at doctrinaire constitutional theory. To Bobby, there is no unified field theory of constitutional interpretation. There is no such thing as constitutional truth. Judicial Supremacy should be replaced by judicial review with congressional override. At bottom, Bobby imagined constitutionalism as a beautiful shape-shifting constitutional democratic consciousness, a communitarian way to nourish a democracy and empower its people, forming a more perfect Union along the way.

Constitutional Law Evolves Through a Process of Constitutional Revolutions
Bobby sought to explain how constitutional legal theory evolves, not which theory is best. This is best exemplified by the first piece in this collection, The Anatomy of Constitutional Revolutions, (Nebraska – his alma mater — 1989). He explained:

[T]he perennial debate over the correct interpretive methodology is the search for which constitution is our Constitution. Among the candidates are: the living Constitution, the strictly constructed Constitution, the perfect Constitution, the strategic Constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, and the Constitution in exile.

To Bobby, none of these are correct and all are beside the point. To Bobby, constitutional legal theory evolves and adapts with what anthropologist and humanist Stephen Jay Gould might have called “punctuated equilibrium,” that is, long periods of stasis upset by abrupt, transformative change. Bobby called such changes in constitutional legal theory “constitutional revolutions” (as in “revolt,” not “revolve”), wherein legal change inconsonant with existing constitutional theory is impelled by compelling extrinsic factors, which explains results in “hard cases,” say Slaughterhouse, Plessy, Brown and Lawrence.

Bobby’s own theory about which constitutional theory is best is ultimately to reject the lot of them – which he said “obscures” real constitutional discussion, in favor of a nihilistic indeterminacy cabined by belief, bias, cognitive pragmatism and relativism, majoritarianism, chaos and cultural influences. Which brings me to his second theory about the role of truth in constitutional theory.
Results are Not Explained by Constitutional Truth, but instead by Constitutional Indeterminacy.
Bobby questioned the meaning of “truth” in constitutionalism. He was unwilling to accept the premise that there is or ought to be settled constitutional truths is well in view in the second piece of this collection, Indeterminacy, Justification and Truth in Constitutional Theory (Fordham, 1992). Bobby could be an epistemic fundamentalist, questioning the meaning of truth in and about constitutional interpretation: “Thus, the question of constitutional indeterminacy is ultimately a question of epistemic indeterminacy. Without knowing the univocal meaning of a constitutional proposition, even if such meaning exists, constitutional practitioners cannot be constrained or significantly guided by the law of the case.”

In Indeterminacy, Bobby argued that because epistemic indeterminacy is more closely tied to practical reasoning than is metaphysical indeterminacy, epistemic indeterminacy (sub nom. “indeterminacy”) is therefore more relevant to constitutional legal theory. He wrote:

Once we rid ourselves of the unfortunate dichotomy between metaphysical and epistemic indeterminacy, we realize that constitutional provisions have a univocal meaning if, and only if, qualified constitutional practitioners agree on what the provision means, and on the type of reasoning appropriate for resolving controversies pursuant to that meaning. This agreement explains why so-called “easy” cases are easy.

Bobbby rejected the notion that there exists “correct” constitutional theory, in favor of a sort of Zen temporal interpretivism that rejects the concept of constitutional “truth” altogether, concluding: “Constitutional theorists should jettison the notion of constitutional truth,” and

that constitutional theorists, judges, and practitioners should abandon truth in favor of justification. [T]ruth does not have the explanatory force it is typically thought to have. Consequently, whether constitutional statements are true is irrelevant to the process of constitutional litigation and adjudication.

Rather than “Truth,” indeterminacy is “an appropriate vehicle to transport constitutional theory into the twenty-first century,” and “ultimately captures the imagination of the age” and best equips society to address the greatest issues of the day, say slavery, abortion, gay marriage, consensual homosexual sex, executive authority, and national security.
To Bobby, the search for constitutional truth misses the point. The real adventure is in the journey of discovery not for the what, but for the who: who gets the final word on constitutional meaning? Congress? The President? The Supreme Court? States? To Bobby, the answer is “none of the above.”
Against Judicial Supremacy; In Favor of Judicial Review
Bobby concluded that while constitutional review is a healthy instrument in a republican democracy, constitutional supremacy escheats to The People. This is exemplified by the eighth and ninth articles in this collection, Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch Solution, (Cardozo, 2006) and What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review? (Widener, 2008)
To Bobby, a politically unaccountable Supreme Court should not have the last word – like Lewis Carroll’s Humpty Dumpty – on the meaning of the words and phrases contained in the U.S. Constitution. In a republican democracy – especially with constitutionally enshrined bicameral lawmaking topped by a democratically elected chief executive – constitutional interpretation should be wielded by those most accountable to the electorate. In Which Constitution, Bobby challenged the very notion of judicial supremacy in constitutional interpretation:

It is an indispensable feature of our constitutional system, according to conventional wisdom, that the federal judiciary is supreme in the exposition of the law of the Constitution. The doctrine of judicial supremacy, though nowhere stated in the Constitution, is considered the foundation of American constitutionalism. [I reject] judicial supremacy because it cannot satisfy requirements of accountability. Accountability, through the consent of the governed, is the sine quo non of legitimacy in a republican democracy. Hence, the electorate’s incapacity to give their consent to justices and judicial decisions through input-accountability, process-accountability, and output accountability renders judicial supremacy anathema to self-government.

Bobby questioned judicial supremacy on constitutional textual and political accountability ground. He wrote:

it prevents citizens nevertheless from engaging in the joint enterprise of integrating and reconstructing their reflective judgments into a conception of the common good as the only authentic fount of sovereign authority over the society’s future.

Bobby also questioned judicial supremacy as applied in America as representative: “The Court, a mostly white, mostly male, and mostly middle-class body, seems conspicuously unrepresentative.”

Rather than courts, Bobby maintained that the electorate ought to be the ultimate arbiter of constitutional meaning. Bobby argued that Congress should have the role of “penultimate constitutional interpreter, one step short of the ultimate interpreter: the electorate.”

Bobby believed that “a congressional override of Supreme Court decisions as the solution to the problem of judicial supremacy has the advantage of resting the authority for constitutional decision-making in the governmental body representative of the electorate and one that can be held accountable by it.”

Bobby held that congressional overrides are a constitutionally and historically entrenched American tradition that would serve as a democratic lever against the “the Court, thoroughly intoxicated with the power judicial supremacy grants them,” onerously running roughshod over a republican democracy.

Bobby made clear that his call against judicial supremacy was not a call to abandon judicial review. As he explained in What’s Wrong: “The value of judicial review lies in its utility in establishing a practice for reflection and deliberative conversation designed to translate the constitutional values of the past into the constitutional reality of the present.” In sum, Bobby believed that republican democracies thrive with judicial review, but not judicial supremacy. While judicial review is laudatory, he reasoned, dispositive constitutional disquisition should devolve not to those who cast judicial votes, but to those who cast elective ballots:

After deliberative debate, the final judgment concerning constitutional and political values should be the electorate’s. Any alternative system gives a government branch the power to check the other branches without an appropriate check on it. If there are to be unchecked checkers in American democracy, they should be—after extensive deliberative debate—the people themselves.

Now let’s hear from some other people, themselves.

[Tribute was part of A Celebration of Scholarship with the Presentation of The Widener Law Review Special Edition in honor of Robert J. Lipkin took place on Wednesday, December 1, 2010 at noon in the Barrister’s Club.]

Guantanamo: The Court Has A Chance to Prove That It Matters

Written by Rebecca Zietlow on December 11th, 2007

Last week, the Supreme Court heard the case of Boumediene v. Bush, in which the Court considered whether detainees held in the United States military prison in Guantanamo Bay, Cuba, have a constitutional right of access to federal courts to challenge their internment. This case provides the Court with a chance to show that it still matters to folks seeking to vindicate their constitutional rights. Since Marbury v. Madison, the institution of judicial review has been justified by the role that courts play in protecting the constitution, and individual rights, from the tyranny of the majority. However, in the past thirty years, the Supreme Court has shied away from that role and made it harder for individuals to obtain access to courts to vindicate their rights.

From cases narrowing the Private Right of Action doctrine, to those rigorously enforcing the justiciability requirements of Article III; from rulings making it harder for public interest lawyers to win attorneys’ fees as compensation for their law reform efforts, to those reviving the doctrine of sovereign immunity and imposing strict limits on congressional power to abrogate that immunity, the Rehnquist Court limited access to the courts as a forum for protection of constitutional rights. The Court has also limited its own jurisdiction, now hearing the fewest cases per year of any Court in the modern era. Finally, the Court has made it harder for Congress to vindicate equality rights and has narrowly interpreted congressional statutes protecting those rights.

This case represents a different scenario. Here, Congress has limited access to the federal courts of the Guantanamo detainees by enacting the Military Commissions Act (MCA) in the spring of 2006. The MCA was Congress’ response to the Court’s ruling in Hamdan v. Rumsfeld, in which the Court ruled that the military tribunals established by the Bush administration military tribunals illegally conflicted with an earlier federal statute authorizing military tribunals. The MCA purports to authorize the Bush administration’s military tribunals and eliminate habeas corpus review of tribunal proceedings.

Now, the Court has to decide whether it will allow Congress to make it irrelevant or whether some constitutional right of access to the federal courts still exists, even to those who are held in military prisons outside the territorial United States. Does the Court still have a role to play in protecting “discrete and insular minorities“? Does the Court still carry out the function of protecting the constitution from lawlessness and tyranny? The Court’s decision in Boumediene will go a long way towards answering that question.

ECA is Delighted to Welcome Guest Blogger, Henry L. Chambers, Jr.

Written by Robert Justin Lipkin on August 10th, 2007

Henry L. Chambers, Jr., is a Professor of Law at the University of Richmond School of Law. ABefore coming to the University of Richmond, Professor Chambers held the James D. Rollins Professorship at the University of Missouri-Columbia School of Law. The Chicago-Kent Law Review will soon publish his article Dred Scott: Tiered Citizenship and Tiered Personhood. Representative works of his include: Recapturing Summary Adjudication Principles in Disparate Treatment Cases, 58 Southern Methodist University Law Review 103 (2005); Colorblindness, Race Neutrality and Voting Rights, 51 Emory Law Journal 1397 (2002), A Unifying Theory of Sex Discrimination, 34 Georgia Law Review 1591 (2000) and Enclave Districting, 8 William & Mary Bill of Rights Journal 135 (1999). His varied academic and research interests include constitutional law (with particular emphasis on voting rights), employment discrimination law and criminal law. Since 2002 Professor Chambers has been a member of the American Law Institute. ECA is happy to post his piece “756, and the Desire to Quantify” on the occasion of Barry Bonds breaking the great Hank Aaron’s home run record. His post immediately follows.

ECA Welcomes Guest Blogger Stephen L. Wasby

Written by Robert Justin Lipkin on August 3rd, 2007

ECA is very pleased to introduce Stephen L. Wasby (B.A., Antioch College; M.A., Ph.D., University of Oregon). Professor Wasby is professor emeritus of political science at the University at Albany-SUNY, Visiting Scholar at the University of Massachusetts- Dartmouth, and Editor-in-Chief of Justice System Journal. Prior to coming to Albany, Professor Wasby taught at Southern Illinois University-Carbondale from 1966 through 1978. His research and writing focuses on the federal courts, particularly the U.S. Court of Appeals for the Ninth Circuit. Among his many other publications, Professor Wasby has published Race Relations Litigation in an Age of Complexity (1995). His post “On the Health of Supreme Court Justices” follows immediately.

On the Health of Supreme Court Justices

Written by Robert Justin Lipkin on August 3rd, 2007

I wish the Chief Justice the best of health. I have some friends with seizure conditions, and I know that it does make their life more difficult –in part because they cannot drive and in part because others know so little that they don’t know what to do and are afraid a seizure will happen “in front of their very eyes.”

I believe that the question of “what we know”–and “what we should have known” (about the earlier seizure)–are crucial matters which deserve more airing. The treatment in the NYTimes piece, which includes information about our non-knowledge with respect to the “health issues” of Rehnquist, Marshall, and Blackmun, is a start–but only a start.

While we may learn more about a president’s health than we may need to know (and one could sympathize with Ike’s distress when his intestinal activity was reported), and while it may be crucial to learn about the president because that is one person, certainly it is important to know about the health of the members of the Supreme Court when a body like that has only nine members, and certainly, the amount of attention given to confirming a Supreme Court justice (and particularly, but not only, the CJ) would suggest the position is sufficiently important that we ought to be provided far more health information. When the numbers in a policy-making body are larger than nine, e.g., the Senate or House, we learn little, although we were told a fair amount about the condition of an ailing senator, at least initially, but likely was only because the Democratic majority in the Senate was so narrow.

I venture the thought that the media have not been sufficient assertive/aggressive in seeking out medical information about justices, but it will not be easy to break down the “culture” that allows media deference when justices evade media questions about health and that allows the justices to brush off the few questions that are asked.

One reason that I believe it important to know “past history” is that it allows us to evaluate present incidents, about which we learn willy-nilly. For example, a seizure today, if it is the sole event in the person’s history, means one thing, but put together with another 14 years ago, it might mean another. And certainly if we did not know of the earlier one and there is a subsequent one two years down the road, our evaluation would differ from having “three points” on which to base our judgments. In this regard, I would add that the NYTimes article has a reference to only one of many episodes in which Thurgood Marshall was ill. Had someone written an article “putting them all together,” questions might have been raised about whether he should continue to serve rather than, as he asserted, stay until he went out feet first. Here, I suspect that many did not push the matter out of fear of being seen as criticizing a liberal icon and thus giving “aid and comfort” to the enemy. Yet we should not have to risk a recurrence of the sad state of affairs when Justice Douglas, after his stroke, would not leave the Court.

I hasten to add that I acknowledge the difficulty of making judgments as to when a certain condition is a disqualifier (for appointment) or the basis for calls that someone step down from office. However, that difficulty notwithstanding, I believe that we need to know more not less, so that we can make our own judgments, however “intelligent” or not they might be.

An Enthusiastic ECA Welcome to Rebecca Zietlow

Written by Robert Justin Lipkin on July 6th, 2007

ECA is pleased to welcome Rebecca Zietlow as a guest blogger. Professor Zietlow graduated from Barnard College and from the Yale Law School. She is the Charles W. Fornoff Professor of Law and Values at the University of Toledo School of Law. In 2006, New York University Press published her book Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights. Her article The Judicial Restraint of the Warren Court (and Why it Matters) will soon be published in the Ohio State Law Journal. The title of her post is “Looking to Congress to Protect Our Rights.” ECA is especially interested in the possibility and desirability of redirecting rights protection from the courts to the legislature. Accordingly, we are grateful to Professor Zietlow for her timely post which follows immediately.

Looking to Congress to Protect Our Rights

Written by Robert Justin Lipkin on July 6th, 2007

The Supreme Court term ended dramatically last week, with many constitutional law professors and civil rights advocates lamenting the Court’s turn to the right. On the very last day, in Parents Involved v. Seattle, the Court struck down the race-based programs adopted by the Seattle and Louisville school boards to integrate their school systems, and stopped just short of outlawing any such race-based measures. A couple of weeks before, in Ledbetter v. Goodyear, the Court eviscerated Title VII equal pay cases, holding that such cases must be brought within 180 days of the employee’s hiring at the lower pay.

These cases are convincing evidence that the Roberts Court is not a protector of “discrete and insular minorities,” the role that, we were taught in constitutional law classes, best justifies the exercise of judicial review. But what made sense in theory was rarely supported by fact. With the advent of the Roberts Court, it’s time to wake up and recognize the fact that throughout our history, with the marked exception of the Warren Court, the Court has rarely protected those rights and that instead, the primary protector of those rights has been the comparatively majoritarian United States Congress. (I discuss this in my recent book, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights.)

Those of us who care about what I call “rights of belonging,” those rights that promote an inclusive vision of who belongs to the national community and that facilitate equal membership in that community, need to stop expecting the federal courts to be the primary arena for protecting those rights, and pay more attention to Congress, the body that is most likely to protect them. There are a number of measures currently pending before Congress that would expand rights of belonging. Such measures include the Hate Crimes Act of 2007, which would create enhanced penalties for violent crimes motivated by hatred based on race, gender, religion or sexual orientation; the Employee Free Choice Act, which would make it easier for unions to organize employees, and the Employee Non-Discrimination Act, which would make it illegal to discriminate in employment on the basis of sexual orientation. All of these measures deserve the same attention from constitutional law scholars and advocates for rights of belonging as the Supreme Court decisions. These measures are compelling examples of “popular constitutionalism” because they represent attempts by members of Congress, the elected representatives of the people, to vindicate the constitutional values of equal protection and equal participation.

The Court’s ruling in Ledbetter provides Congress with another chance to step up to the plate and protect our rights of belonging by amending Title VII to set a realistic  filing date for equal pay cases. Indeed, such a law has already been proposed in Congress. There is ample precedent for this bill: Congress has expanded the statute’s protections twice before to overturn adverse Supreme Court rulings with the Pregnancy Discrimination Act in 1978 and the Civil Rights Restoration Act in 1991. Rather than focusing only on the Court, constitutional law scholars should note that a House Committee approved the Ledbetter Bill on June 27, less than a week after it was introduced. Congress can’t do anything about the Court’s interpretation of the Equal Protection Clause, but it can act to remedy some of the mistakes it has the power to undo. We should expect it to.

A Global Peoples Parliament

Written by Robert Justin Lipkin on June 21st, 2007

On May 18th on this page Robert Justin Lipkin blogged about our ideas for a global parliament and invited us to discuss the topic in a guest blog of our own. We are pleased to accept his invitation.

In some ways a discussion of global democracy seems a topic ill-suited to the pages of a blog by its name dedicated to contested issues in America. Yet, because of the tremendous effect that the world’s sole remaining super-power, or hyper power as the French like to say, has on the rest of the world, even if American democracy was to become absolutely perfected, there would still be something profoundly undemocratic about a situation where representatives of less than five percent of the world’s people determine what amounts to global policy on issues ranging from Iraq to global warming. Unless we take a completely tribalist view, therefore, a discussion of democracy in America ultimately raises larger questions of democracy in the world.

The undemocratic character of the international system is only most starkly demonstrated by the role of the sole remaining superpower. In truth, it results from the very structure of a global system based on state sovereignty instead of democracy. In such a system adherence to democratic principles such as one person/one vote, open public discussion, and rule of law are replaced by political, economic, and military coercion where the most powerful states–niceties aside–get to call the shots. We live in a world order that resembles more the loose coordination that is associated with rival criminal “families” than the lawmaking procedures of democratic political communities.

Cut off from global decision-making, people with very different politics from very different places have in common that they are angry. In February 2003 they took to the streets by the millions in a futile attempt to prevent the Iraq war. Since the Seattle demonstrations of 1999 the anti-globalization movement has consistently mounted popular opposition to meetings of the IMF, World Bank and WTO. And tragically, the most alienated and extreme have embarked on a campaign of nihilistic violence that has unleashed a process of perpetual war since the dramatic attacks of September 11th.

These conditions cannot be changed overnight, but it is crucial that we begin now to construct a more democratic institutional structure. The core institution around which democracies everywhere are built is a parliament. In the age of globalization the international system should no longer be an exception. A global parliament is politically feasible now if we proceed in incremental stages. Because leading states especially are unlikely to give up their current role overnight, the parliament could start primarily as an advisory body. This is how its regional prototype, the European Union’s increasingly powerful European Parliament began. Also, it need’nt have a full complement of members to start. A directly elected body with universal aspirations comprised of only 20 to 30 founding state members would make a significant impression. What has become the European Union of 27 countries began with only six states and grew over time. This is not to say that such growth would proceed without challenge. Perhaps most significantly democratic forces would have to exercise great vigilance to protect the parliament from the dangers of cooption and manipulation. Once the Global Parliament began to increase its influence and size, its formal legal powers, as well as its relationship with the United Nations, would have to be developed. One possibility is for the Global Parliament and the UN General Assembly to be constituted as a strengthened United Nations bicameral legislative system.

Even in its earliest days, however, the Parliament could begin to help reduce global tensions. While the Parliament may not yet have binding powers, it would be the only international body capable of speaking directly on behalf of the people of the world. Its resolutions would be influential, and citizen groups representing different interests and perspectives would be likely to compete for its support. The Parliament could become a much needed global venue where the world’s interests could meet directly to argue positions, negotiate, and to the extent possible reach common ground.

Interest groups would likely become invested in the processes of a parliament that was open to their participation. If the experience of democracies the world over is indicative, even in defeat most would remain committed to pursuing their cause peacefully within the parliamentary structure. Eventually, it is to be hoped that extremists such as Osama bin Laden might come to be as marginalized internationally as Timothy McVeigh and his ilk are within the United States.

And, in a global parliament there would be no unified states to counter, contain or attack other states. Rather as occurs in other multinational parliaments–such as India, Belgium or the European Parliament–delegates would often break national ranks to vote along lines of beliefs and diverse interests. Thus, fluid transnational parliamentary coalitions might begin to supplant conflict, including armed conflict among states. To the extent that such parliamentary processes began gradually to displace state power politics, a genuine lessening of global tensions could result. Ever since the horrific events of September 11th 2001 the world has taken a marked turn toward militarism in foreign relations. The immediate result has been to make the world a far more dangerous place, and the long term prospects for a world organized by force of state power are not favorable. At best, we can hope for new forms of the recurrent global conflicts that resulted in over 200 million deaths in the 20th century. In contrast, democracy, however imperfect, has provided the best cooperative basis upon which to establish a decent social life in societies the world over. Global society should no longer be denied the benefits of democracy. It is time to introduce world elections that are open to the world’s people.

An ECA Welcome to Andrew Strauss and Richard Falk

Written by Robert Justin Lipkin on June 17th, 2007

ECA is delighted to announce that Andrew Strauss and Richard Falk, two internationally heralded scholars, will post “A Global Peoples Parliament” here later this week.

Is the United States Supreme Court a Court of Law? Is It a Court of Justice?

Written by Robert Justin Lipkin on June 17th, 2007

If you think the Supreme Court lost its credibility and legitimacy in Bush v. Gore–the only instance of the Court effectively choosing the next president–consider the following case reported today in the New York Times:

If the Supreme Court, with its new conservative majority, wanted to announce that it was getting out of the fairness business, it could hardly have done better than its decision last week in the case of Keith Bowles. The court took away Mr. Bowles’s right to challenge his murder conviction in a ruling that was so wrong and mean-spirited that it seemed like an outtake from MTV’s practical joke show “Punk’d.”

Mr. Bowles, an Ohio inmate, challenged his conviction in federal district court and lost. The court told Mr. Bowles that he had until Feb. 27 to appeal. He filed the appeal on Feb. 26, and was ready to argue why he was wrongly convicted. But it turned out the district court made a mistake. The appeal should have been filed by Feb. 24.

The Supreme Court ruled, 5 to 4, in a majority opinion written by Justice Clarence Thomas, that Mr. Bowles was out of luck, and his appeal was invalid. So much for heeding a federal judge.

The opinion, written by Justice Clarence Thomas, insisted that “We have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature.” Fine! But why is there no equitable remedy? The petitioner relied upon the mistake of a federal district court. Justice Thomas is unmoved. A deadline is a deadline. “Accordingly, we hold that petitioner’s untimely notice — even though filed in reliance upon a District Court’s order — deprived the Court of Appeals of jurisdiction” This brittle opinion discredits the Court and flies in the face of fairness. The Court needs to learn that absolute rules applied absolutely–that is, without the possibility of exception–create absolute injustice. As Justice Souter, in dissent, exclaimed: “It is intolerable for the judicial system to treat people this way.” The Supreme Court has “the authority to recognize an equitable exception to the 14-day limit, and we should do that here, as it certainly seems reasonable to rely on an order from a federal judge.” Commonsense? Not for a majority of the current Supreme Court.