In Lone Dissent, Gorsuch Criticizes SCOTUS for Spending Time Focusing on a ‘Pronoun Dropped in 1946’


U.S. Supreme Court Justice Neil Gorsuch appears in a December 3, 2018 file photo. (Image by Jabin Botsford/Pool/Getty Images.)

U.S. Supreme Court Justice Neil Gorsuch

In a 2-page dissent, Justice Neil Gorsuch on Monday criticized each of his fellow justices for ruling that the deadline of a drug offender’s criminal appeal had expired all because of a “mysterious 1946 amendment” to a procedural rule which deleted the word “his.”

The case is Kemp v. United States, and the justices considered a procedural rule with weighty impact on the criminal appeals process.

Dexter Earl Kemp was convicted in 2011 for drug and firearms offenses and sentenced to 35 years in federal prison. As is typical after similar convictions, Kemp filed an appeal which failed. In 2015, Kemp filed another appeal for ineffective assistance of counsel. That appeal was dismissed in district court, because the judge found the appeal had missed a deadline. All parties now agree, however, that the decision had been incorrect and that Kemp’s filing had been timely. At stake in Kemp’s SCOTUS appeal is how and when the trial judge’s error might be corrected.

At the heart of Kemp’s current case is a battle between two procedural rules. When it dismissed Kemp’s appeal, the court relied on Federal Rule of Civil Procedure 60(b)(1), which imposes a one-year timeline for a claim based on “mistake, inadvertence, surprise, or excusable neglect” by the trial court.

Kemp, however, contended that instead of focusing on the “mistake” by the trial court, FRCP 60(b)(6) should apply. It allows relief from a judgment “for any reason that justifies relief” and imposes the more flexible “within a reasonable time” deadline.

The Supreme Court sided 8-1 with the U.S. Court of Appeals for the 11th Circuit, and affirmed the ruling against…


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