Scalia dissented.  Joined by Clarence Thomas, Scalia explained that really, he was abandoned by only some of his lawyers.  And sure it’s all unfair but then if we demanded fairness of our criminal justice system it would be the end of the republic.

OK, he didn’t actually say that.  What he said was this.

But if the interest of fairness justifies our excusing Maples’ procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.That is simply not the law—and cannot be, if the states are to have an orderly system of criminal litigation conducted by counsel. Our precedents allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.

That is to say if we demanded fairness, then it would be the end of “an orderly system of criminal litigation conducted by counsel.”  The republic would survive, but our whole system of criminal justice would collapse.  (Which he might think would destroy the republic, but he doesn’t say that.)

So fairness be damned.

The same doctrinaire views we applaud when they serve to give the defendant half a chance, as in the Crawford line of cases, comes back to bite reason in the butt when it cuts the other way.  Rules are rules, Nino says, and the state can’t function without rules.  And the Supreme Court shouldn’t stick its nose into states’ rules that would put a man to death without review because a law office, even one with as much mahogany and marble as Sullivan & Cromwell, screwed up.

Justice Scalia made the point more clearly in Holland v. Florida, against via Gamso :

The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J.Story, Commentaries on Equity Jurisprudence §19, p. 19(14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. 

While the adoration of procedure over all else is understandable, as it’s been the foundation of religion and a variety of despotic political systems, there seems to be one critical flaw in the rationale of the dissenting duo in Maples v. Thomas.  A tie goes to the defendant. 

You see, rules are developed for the purpose of orderly litigation.  But orderly litigation exists to assure that the result is as trustworthy as possible.  We have rules of evidence to assure that defendants aren’t convicted upon unreliable evidence.  We have rules of procedure to assure that both sides get to question witnesses, and both sides can adequately prepare without surprise or confusion.  We have rules of notice and service so that no one gets sandbagged. And we have rules, grounded in a constitutional mandate, that defendants have competent counsel, because he would be unable to challenge the prosecution without it.

And Cory Maples was denied competent counsel.  Instead, he got Sullivan & Cromwell, an august and noble firm, even if there was no one there who would accept the papers in his case. 

When the rules become more important than the reason why we have rules at all, the prissy rationale of grocery clerks suffice.  As long as each box on a checklist is marked, the job has been done to official satisfaction.  Precedent, wiggly enough when it wants to be, suddenly becomes clearer, brighter and blacker, so much so that crossing that forbidden line makes it seem as if the empire will crumble.

At least it was only to two of our Nine.  Seven understood that they are the final arbiters, the backstop, to prevent abject insanity from prevailing, and that the rules, all of them, exist for that very moment in time when they can stop a manifest wrong from occurring.

This, of course, doesn’t mean that Cory Maples gets off death row. It only means he gets another shot at appealing the denial of his Rule 32 motion for ineffective assistance of counsel.  The appeal that the lawyers at Sullivan & Cromwell forgot.  And the nation has yet to crumble.  At least not because of this.