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Wriggling Out of Statutes

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The second habeas corpus decision today is McQuiggin v. Perkins, No. 12-126.  Justice Ginsburg performs an escape act worthy of Harry Houdini to find an "actual innocence" exception to the federal habeas statute of limitations despite the inconvenient truth that Congress did not include one, even while it was building such an exception into other parts of the law.

I don't find the result offensive at all.  Many times I have called for an increased focus on actual innocence in habeas matters, harkening back to Judge Friendly's famous 1970 article.  As Justice Ginsburg notes, substantial claims of actual innocence are rare.  But that is not what the statute says, and the fix should have been legislative, not judicial.

As for the actual case before the Court:  "Moreover, the proffered evidence, even if 'new,' was hardly adequate to show that,had it been presented at trial, no reasonable juror would have convicted Perkins."  That is "speaking in a judicial voice" for "this claim is crap."

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"Wriggling"? "Blowing off" is the term I'd use. Each time the Court pulls this nonsense, it undermines its own legitimacy. If, at some point in the future, the Court ceases to have the respect that it needs to have its decisions adhered to, the blame will be the Court's. With each decision like this, the Court comes closer and closer to simply having the law be "whatever the courts say." Unfortunately, when that becomes the law, then the Court cannot complain when others follow its example and ignore the law.

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