On the current Court, Justice Gorsuch is the most unpredictable justice. The other members of the Court are more-or-less predictable, but Justice Gorsuch continually surprises me with how he disposes of cases--not in the outcomes he reaches, but how he gets there. Two opinions from Monday illustrate this dynamic.
First, in Kemp v. United States, Justice Thomas wrote an opinion for 8 justices about the meaning of "mistake" in FRCP 60(b)(1). He observed that there is a "longstanding disagreement" on this issue in six circuits. Does Justice Gorsuch join this sound textualist opinion that resolves a circuit split, and narrows the scope of habeas relief? Nope. Gorsuch would have DIG'd the case so Rule 60(b)(1) can be amended pursuant to the Rules Enabling Act.
Respectfully, I would have dismissed the writ of certiorari as improvidently granted. Not only does this case fail to meet our usual standards for review. See Supreme Court Rule 10. At bottom, this dispute presents a policy question about the proper balance between finality and error correction. Should a district court be able to clean up a legal error through a collateral proceeding on any reasonable timeline within a year of judgment? Or do Rule 59(e) and the appellate process provide the necessary corrective measures in ordinary cases, with Rule 60(b)(6) as a last, narrow avenue to relief? Questions like these are best resolved not through a doubtful interpretive project focused on a pronoun dropped in 1946, but through the rulemaking process.There, policy interests on both sides can be accounted for and weighed in light of the "collective experience of bench and bar." Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 114 (2009).
