Update: A few minutes after I wrote this post, the blog post I discuss below was edited to better reflect Scalia’s opinion in Maples v. Thomas. In particular, the post now correctly reflects that Scalia would’ve rejected relief “because he believed the Maples was still technically represented in the case,” while adding a new argument that “[t]he record demonstrates that a gap occurred in representation.” Glad we cleared that up.
Blogging is supposed to be fun. In a perfect world, here’s what would happen: you post something interesting and insightful up for the world to see, everyone compliments you on your incredible intelligence, and you can be happy that you added something useful to the world. In the real world, here’s what often happens instead: you post something empty (or perhaps something insightful that turns out to be wrong), anonymous internet trolls leave angry comments eviscerating your work, and you leave wishing you had spent all that time you invested with a stiff drink rather than wasting it on your crappy blog post.
These problems can only get worse when people write about things falling outside their traditional areas of expertise. Susan and I, for instance, write about anything that catches our attention for a moment, which may be something we each know very little about. Even the title of our blog acknowledges the broad sweep of what we talk about here. As a result, we sometimes stumble off track and screw things up.
Recognizing I’m not an expert on many subject matters I write about here, I always try to do two things: (a) acknowledge when I’m wrong, if someone tells me; and (b) never write a post in a heavy-handed, “why doesn’t this person already know this” kind of way. (I’ll admit there have been exceptions to this rule.)
The importance of a bit of humility in blogging is nicely illustrated by a recent blog post from law professor qua pop culture legal icon Jonathan Turley. The post excoriates Justices Thomas and Scalia for their recent dissenting opinion in a habeas case, Maples v. Thomas. As it turns out, Professor Turley’s bluster seems to be based on a fundamental misunderstanding of the decision.
[A digression to explain the case. The Maples case presents a procedural issue only a criminal nut could love: what constitutes "cause" sufficient to excuse procedural default? SCOTUSBlog's Plain English column explains it well:
When he first challenged the constitutionality of his death sentence at the state level, Maples thought (as he later told courts) that he had “won the lottery” because he was represented by two lawyers from a prestigious New York law firm. Unfortunately for Maples, after his New York lawyers filed his brief in the state trial court but before the court issued a decision ruling against him, both of those lawyers left the firm for other jobs, without notifying the court. So when the court mailed the decision to the lawyers, the mailroom at the New York firm simply returned the unopened envelopes to the court (marked “Returned to Sender”). As a result, Maples missed his chance to appeal the court’s ruling, which in turn led federal courts to reject his constitutional claims on the ground that they were procedurally defaulted – that is, that he had not given state courts a chance to consider them.
Ok, now back to the law professor's post.]
The Court determined that Maples’ lawyers had abandoned him, providing cause for his procedural default. Scalia and Thomas dissented. This, Turley says, is deplorable:
Scalia dismisses the confusion and lack of involvement of the attorneys who tried to retrieve Maples’ procedural rights. However, once again, procedural requirements must be tempered by some notion of basic justice and fairness. The jurisprudence of these justices appear to be impenetrable by such values. It is the triumph of procedure over justice.
Trouble is, Scalia never once concluded that abandonment is insufficient to establish cause to overcome procedural default. In fact, Scalia expressly agreed “that a habeas petitioner’s procedural default may be excused when it is attributable to abandonment by his attorney.” Scalia dissented because of a factual disagreement with the majority’s conclusion that Maples had been left without counsel. In Scalia’s view, Maples was still represented by the firm of Sullivan and Cromwell as a whole and by a few other individual attorneys who had also represented him. Thus, there was no “abandonment,” but only attorney error. Basic attorney error is something long-recognized as insufficient to establish cause. Scalia’s opinion closes by noting that Maples’ case could therefore provide sufficient cause only if the Court undid its own case law and made all attorney error sufficient to establish cause. (It is this final explanation that Professor Turley seems to take out of context.)
Scalia’s fine factual distinction may be weak to many, but the point is that he does not reject abandonment as a grounds for relief. He does not insist that procedure triumphs over justice in every case. Professor Turley seems to have overlooked this subtle but important distinction.
I flag all this as a cautionary tale. Blogging is often sold as a no-lose situation, especially for practitioners looking to draw in clients by flashing their intelligence. But blogging is a difficult and dangerous undertaking. Even the best sometimes misread cases or misunderstand doctrine. And when that happens in a blog post, there’s nowhere to hide. The wolves come out out of the shadows to pounce. There is blood. Things get messy. Keep that in mind when you sit down at your keyboard with plans to show the world how smart you are.
…Now go ahead and tell me all the ways I’m wrong.