Cases & Deals

Law professors file amicus brief referenced by Justice Gorsuch during argument

Clients Law professors

On behalf of a group of law professors, Jones Day filed an amicus brief that Justice Gorsuch described as "instructive" during argument. In their brief, the law professors argued that timely Rule 59(e) motions should never be treated as second or successive habeas petitions. The professors explained that Rule 59(e) derives from courts' historical power to perfect their judgments during the term of the court and prior to appeal. In contrast, Rule 60(b) motions, which can be treated as second or successive habeas petitions under Gonzalez v. Crosby, evolved from courts' historical power to set aside judgments after term had ended and after all appeals had concluded. Rule 59(e) motions therefore have not historically been viewed by courts and litigants as creating opportunities for "abuse of the writ."

During argument, Justice Gorsuch relied on the historical context provided in the professors' brief while questioning Texas Solicitor General Kyle Hawkins. Justice Gorsuch said, "...what was instructive to me was the historian[s'] brief and that the difference between 60 and 59 is a dichotomy that's pretty ancient and that trial courts have since time out of mind ... had the authority to amend their judgments to correct errors, not just clerical ones but other significant ones that they wished to, so long as the court's in session. And ... that is the end, when it divests itself, when it finishes its term, that's when it goes off to the court of appeals. And that that's what 59 and 60 were aimed to mimic."

When Mr. Hawkins argued that the final judgment determines the parties' rights and obligations, Justice Gorsuch returned to the history of Rule 59, saying, "I'm asking you to deal with the history, which is that that's not the case, right? The history was that after final judgment, so long as the trial court was sitting, it had an opportunity to fix its errors, substantive as well as clerical."

Gregory Dean Banister, Petitioner vs. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, No. 18-6943 (U.S.)

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