It's springtime, and we all know what blooms in the Spring. That's right, amendments to the rules of procedure for federal courts.
The odd system for these rules is that the Judicial Conference recommends them to the Supreme Court, the Court adopts them (as recommended or with its own alterations) tentatively by sending them to Congress before May 1, and if Congress does nothing by December 1 they take effect.
The amendments are on the Supreme Court's order page.
The amendment to Rule 41 of the Appellate Rules is noteworthy. It addresses abusive delay in issuing the mandate. The Judicial Conference explains:
The odd system for these rules is that the Judicial Conference recommends them to the Supreme Court, the Court adopts them (as recommended or with its own alterations) tentatively by sending them to Congress before May 1, and if Congress does nothing by December 1 they take effect.
The amendments are on the Supreme Court's order page.
The amendment to Rule 41 of the Appellate Rules is noteworthy. It addresses abusive delay in issuing the mandate. The Judicial Conference explains:
The proposed amendments to Rule 41 (Mandate: Contents; Issuance and Effective Date; Stay) would revise subdivision (b) to clarify that an order is required for a stay of the mandate - the court of appeals cannot delay issuance of the mandate by mere inaction. It would also renumber subdivision (d)(2)(B) to subdivision (d)(2), and would address a potential gap in the rule by amending subdivision (d)(4) (former subdivision (d)(2)(D)). The proposed amendment to subdivision (d)(4) provides that a mandate stayed pending a petition for certiorari must issue immediately once the court of appeals receives a copy of the Supreme Court's order denying certiorari, unless the court of appeals finds that extraordinary circumstances justify a further stay. Also, the reference in prior subdivision (d)(2)(D) to the filing of the Supreme Court's order is replaced by a reference to the court of appeal's receipt of a copy of the order for greater clarity.See Arizona's certiorari petition in Ryan v. Poyson, No. 17-1274.
Can anyone really blame the Ninth Circuit here? Yes, this is lawless nonsense---but given the Supreme Court's penchant for lawlessness (e.g., Maples v. Thomas, in which the Court allowed a capital murderer to shift positions on appeal and characterized mere negligence as abandonment, which has a willfulness component, or the recent Bell case where defense counsel sandbagging, on a Rule 60(b) motion, ripped open a habeas judgment).
The Supreme Court has done the do as I say, not as I do thing with capital cases---why is it a shock that others follow the lawlessness lead. The Court's utter failure to adhere to basic standards when it comes to capital punishment makes its sometimey corrections of the Ninth Circuit (and other circuits) seem like it's the nine-headed Caesar that Scalia warned us about.
The Court's capital punishment jurisprudence, and its failure to curb appalling abuses of lower courts, show that it is an utter disgrace.