Below, Akin Gump’s Scott Street recaps last Tuesday’s oral argument in Bloate v. United States. Check the Bloate v. United States (08-728) SCOTUSwiki page for additional updates.

For the most part, the Supreme Court considers two types of legal issues.  It decides constitutional questions; on those issues, the Court gets to decide what the law should be.  It also decides questions about federal statutes.  On those questions, the Court certainly has the power to say, in the words of Marbury v. Madison, "what the law is," but it has always said that its primary goal is to determine Congress's intent, rather than what it thinks the law means.

Notwithstanding this sentiment, spectators at the oral argument in Bloate v. United States might have believed that several of the justices were acting as legislators.  For example, Justice Ginsburg suggested that it would be unfair to include the time that a defendant spends preparing a pretrial motion in the Speedy Trial Act's seventy-day clock, but nonetheless to exclude the time that the government spends responding to the defendant's motion, even if the government receives additional time to respond to the motion.  Justice Sotomayor wondered if judges would refuse to grant defendants additional time to prepare their pretrial motions if the judge had to issue findings on the record to exclude that time from the speedy trial clock.  Similarly, several justices seemed concerned with the fact that different districts allocate different times for responding to pretrial motions.  For example, one district may give a party seven days to respond to a motion, while another district gives a party twenty-one days to respond.  With those different rules in place, the speedy trial clock will take longer to run in some districts because, as the parties here agree, the time spent responding to and deciding a pretrial motion is automatically excludable.

Although all of these concerns are legitimate, they have no relevance in this case.  For instance, Congress lets the federal districts make their own rules for considering pretrial motions.  Nothing in the Speedy Trial Act says that federal judges must spend the same amount of time deciding a pretrial motion in order to automatically exclude that time.

Because this case involves statutory interpretation, it was not surprising to see Justices Alito and Scalia focus on the plain language of the Speedy Trial Act.  Justice Alito wondered whether time granted to prepare a pretrial motion could reasonably be called a period of delay resulting from a "continuance," such that it would qualify for exclusion from the speedy trial clock if the district judge found that the delay served the interests of justice and outweighed the defense and public interest in having a speedy trial.  Justice Scalia then pondered how the government could define a "proceeding" concerning the defendant to include additional time spent preparing a pretrial motion when Congress specifically mentioned pretrial motions in the Speedy Trial Act; in his view, judges should automatically exclude time from the filing of the motion through its prompt disposition.  Moreover, he noted, the Senate Judiciary Committee explicitly rejected a request by the Justice Department to include preparation time in that example because it found the request unreasonable, thereby strongly suggesting that Congress did not intend to automatically exclude such time under the "other proceedings" provision.

Justice Stevens, meanwhile, pointed out that, under the government's rule, some actions could qualify as both a "proceeding concerning the defendant," and thus be automatically excluded from the speedy trial clock, and as a "continuance," which would be excluded only if the judge specifically found that the granting of the continuance served the interests of justice and outweighed the speedy trial interests.

Perhaps the most fascinating aspect of Bloate, however, is that the breadth of the "other proceedings" language that Congress used in the Speedy Trial Act arguably supports the government's interpretation.  How, then, do we figure out what the statute means?  At the very least, I expected the Court to focus more on the purpose of the Speedy Trial Act, which Congress enacted to further the criminal defendant's constitutional right to receive a speedy trial.  Obviously, it would offend the defendant's speedy trial right to automatically exclude such time if the government requested it.  But why should a defendant complain about interfering with his own right to a speedy trial?  Thus, it seems logical to automatically exclude additional time that a defendant requests to prepare pretrial motions.

On the other hand, the Court has long recognized that the Speedy Trial Act also serves the public interest.  As a result, it recently held that a defendant cannot prospectively waive his right to a speedy trial.  And the Act itself states that a period of delay resulting from a "continuance" cannot be excluded simply because the defendant requested it"”the judge must balance the interests of justice against the speedy trial interests to exclude that delay.

Those dueling policies collide in this case.  But you would not know it from listening to the oral argument.

The Chief Justice raised a point that nobody else had considered but that ultimately will not decide this case.  Here, when Bloate appeared at his arraignment, a magistrate judge set September 13 as the deadline for filing pretrial motions.  Bloate asked for additional time to prepare those motions on September 7 and the judge granted his request the same day, extending the filing deadline to September 25 and setting the hearing on pretrial motions for October 4.  On September 25, Bloate filed a pleading stating that he wished to waive his right to file pretrial motions.  The magistrate judge considered that request at the October 4 hearing and granted it.

The lower courts treated the entire September 7 to October 4 period as automatically excludable.  But, as the Chief Justice noted, the "delay" that resulted from Bloate's request for additional time occurred from September 13 to September 25, the period between the date that Bloate was supposed to file his pretrial motions and the date the judge extended that deadline to (everybody agrees that the period between the filing and the court's disposition of the motion must be excluded).   That seems correct to me: how can a period that was already set aside for preparing pretrial motions constitute a "delay"?

Neither attorney expected that question and, therefore, neither could explain how the Chief Justice's calculation would affect this case.  In fact, even if we count the time between September 7 and 13 against the speedy trial clock, Bloate was still brought to trial in under 70 days.  Thus, the Court will still have to resolve the conflict between the Speedy Trial Act's dueling policies and I hope that they focus on more important issues than those that dominated the oral argument in doing so.

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