Bowles v. Russell, a strange U.S. Supreme Court case

Here’s (a slightly truncated version of) the Supreme Court’s official summary of the case:

Having failed to file a timely notice of appeal from the Federal District Court’s denial of habeas relief, petitioner Bowles moved to reopen the filing period pursuant to Federal Rule of Appellate Procedure 4(a)(6), which allows a district court to grant a 14-day extension under certain conditions, see 28 U. S. C. §2107(c). The District Court granted Bowles’ motion but inexplicably gave him 17 days to file his notice of appeal. He filed within the 17 days allowed by the District Court, but after the 14-day period allowed by Rule 4(a)(6) and §2107(c). The Sixth Circuit held that the notice was untimely and that it therefore lacked jurisdiction to hear the case under this Court’s precedent.

Held by the U.S. Supreme Court: Bowles’ untimely notice of appeal-though filed in reliance upon the District Court’s order-deprived the Sixth Circuit of jurisdiction. Pp. 2-10.

Here’s what happened, boiled down to the essence that makes the case interesting (or ironic, or Kafkaesque): Bowles, a convicted murderer, filed a habeas corpus petition in federal district court claiming that the conviction was based on violations of his constitutional rights. He lost, and then asked the district court to extend his time to take an appeal. The court did so, for a period of 17 days, even though the relevant federal rule of procedure and statute say that the time can only be extended by 14 days. Bowles (and his lawyer) didn’t notice the judge’s mistake, and, relying on the judge’s 17 day extension order, filed his appeal within 16 days (obviously thinking he was playing it safe and beating the deadline by a day). The Supreme Court held that he was out of luck — the rule and statute said 14 days, and that was all he had, no matter what the district judge told him. In other words: his good-faith reliance on the judge’s order was understandable and regrettable; nevertheless, he should have understood that one proceeds in reliance on such orders — which is to say, on judges’ official interpretations of the law — at one’s own risk. (I am, needless to say, glossing over the particularities of the case in ways that would make some law professors say, hold on a minute, it’s more complicated than that, but that is, essentially, what the Supreme Court’s 5-4 majority said.)

The companion case to Bowles, for my purposes at least, is Walker v. City of Birmingham, which was decided in the thick of the civil rights movement in 1967. In Walker, ministers from some Birmingham churches planned to hold peaceful demonstrations against the Jim Crow laws and practices of the local establishment. Upon Learning of their plans, city officials promptly went to state court and got an injunction against all such (First Amendment-protected) activities, an injunction that was patently unconstitutional on its face. The ministers announced they would march anyway and did so. When they were charged with criminal contempt of court for violating the order, they attempted to defend themselves by arguing that the injunction was unconstitutional and that they were therefore under no obligation to obey it. On appeal from their convictions, the Supreme Court told the ministers that the legality of the judicial order was irrelevant. Yes, the majority conceded, the “breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question”; nevertheless, there were higher values to be served: instead of protesting, they should have gone back to the Alabama courts and attempted to appeal from the original injunction. “[N]o man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion,”as the Court put it. (In fact, as the dissent explained, Walker and his fellow protestors chose not to fight a prolonged and obviously futile court battle because they wanted to march on particular symbolic days (Good Friday and Easter Sunday), which legal proceedings would have made impossible.) “One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” Accordingly, as required by the civilizing hand of law, the protestors did their time in jail for violating an unconstitutional court order. (Walker is available here. Robert Cover’s Harvard Law Review article “Nomos and Narrative”provides the canonical analysis and critique but doesn’t seem to be available on-line except in for-pay databases.)

Let us put Walker and Bowles together. A judicial order that is inconsistent with the law must be obeyed (even if patently unconstitutional, Walker), but it may not be relied upon (Bowles). Put that way (again, perhaps a little reductively) we indeed seem to be approaching the Kafkaesque. Another Kafka-esquity: How are you are supposed to determine what the law is — which, of course, you’d better do since you can only rely on a judicial order that complies with it — if you can’t rely on what judges say it is? (The problem is especially acute if you agree with the Supreme Court that “no man can be judge in his own case”and decide for him/herself what the law is or ought to be.) On the Supreme Court’s account in these two cases, aren’t we all standing before the Law like the man from the country (and so many other Kafka characters), assured of the Law’s majesty and authority, believing that it “should surely be accessible at all times and to everyone,”and yet left eternally waiting to find out what in fact it says and what it has in store for us?

Author: international

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