What Does the Supreme Court Really Think About the Right to Counsel?

The chief justice pens a paean to criminal defense attorneys, never mentioning the national crisis the Court has helped perpetuate.
Jonathan Ernst/Reuters

The United States Supreme Court Tuesday issued two hard-fought rulings that further tip the balance in our criminal justice systems toward the police and prosecutors. In Fernandez v. California, the justices held that the police could search an apartment without a warrant even if one of its inhabitants refused to consent to such a search. And in Kaley v. United States, the justices held that criminal defendants are not entitled to a pretrial hearing to determine whether prosecutors may freeze assets that could be used to pay for defense attorneys.

Both decisions generated strong dissents. In Fernandez, Justice Ginsburg wrote that the majority's opinion "tells the police that they may dodge" the warrant requirement of the Fourth Amendment even though they would have "ample time to secure the approval" for such a warrant from "a neutral magistrate." And in Kaley, Chief Justice Roberts wrote that the majority's opinion impermissibly denied a criminal defendant the right to challenge the freezing of his assets at a time, before trial, when he would most need those assets to pay for an attorney.

Now, it isn't exactly news when this court sides with the government against the individual in cases involving matters of criminal justice. In many fundamental ways this court is the opposite of the Warren Court. But it is a bit of news when the Chief Justice, this Chief Justice, writes an ode to criminal defense attorneys and the critical role they play in the administration of justice. This is what Chief Justice Roberts did in Kaley and it's worth a closer look because it highlights the hypocrisy of the Court's current position on the constitutional right to counsel.

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The Court's majority in Kaley was openly hostile to the idea of a broadened right to counsel. Six justices refused to extend it to require a pretrial hearing sought by defendants who wanted their money unfrozen so they could pay their lawyers. But it would be a mistake for posterity to remember the dissent in Kaley as some noble defense of the right to counsel. It was not. It was instead a blunt reminder that a strong majority on this Court, from both sides of the ideological divide, remain unwilling today to embrace even the basic principle that Justice Hugo Black enunciated in 1956 in Griffin v. Illinois: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has."

The Kaley decision—both parts of it—confirm that this form of unequal justice is precisely what the Roberts Court is comfortable with—one right to counsel for those defendants who can afford a lawyer and a much less robust right, a hollow right in many ways, for those defendants who cannot. Writing for himself and two of his colleagues, Justice Stephen Breyer and Justice Sonia Sotomayor,  the Chief Justice started off the Court's justification for such disparate treatment with this compelling lede (and it was all downhill from there). He wrote:

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

Now, every criminal defendant with enough money to pay for a defense attorney, or even every citizen with the means of borrowing enough money to pay for a defense attorney, surely appreciates the way in which the dissenters are sticking up for them here. But what about the criminal defendant who cannot "readily give all he owns to defend himself" because he owns nothing of value to humbly exchange for the services of a lawyer? What about the poor man and woman who has no assets for the government to seize?

The omission of any discussion of the indigent's right to counsel in Kaley is remarkable when you consider that it comes from a Court that has presided over—and in material ways helped perpetuate—the national crisis of indigent defense we now endure. Every day in this country, in courts of all shapes and sizes, criminal defendants are deprived of their constitutional right to counsel because they cannot afford a lawyer and because the court-appointed lawyer they do receive is so terribly overworked, and so grossly understaffed, that he or she often cannot provide even minimally adequate representation.

The Chief Justice knows all this. Every single justice on the Court knows it. You would have to be a rock on the surface of Mars not to know it. The Justice Department has loudly decried the current crisis in indigent defense. Lower court judges have cited the crisis to provide relief to litigants. Scholars have written at length about the problem. So have earnest advocates. Documentaries have been made—and very good ones, too—chronicling its impact upon citizens. But you wouldn't know any of that from reading what this dissent.

Even though these indigent citizens make up the vast majority of criminal defendants in this country, they are not included in the Court's equation or, as we see below, anywhere else in this dissent. For example, after evaluating some of the material facts of the case—two defendants, a wife and husband,  deprived of their right to ask a judge, before trial, to unfreeze their assets so that they may pay their lawyer—the dissenters then return to their analysis of the Sixth Amendment. Chief Justice Roberts and company wrote:

The issues at stake here implicate fundamental constitutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, 466 U. S. 648, 653–654 (1984). And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U. S. 45, 53 (1932).

This is precisely the sort of language we would have read from a justice during the height of the Warren Court except for what is plainly missing from the litany of case citations. Nowhere do the dissenters cite Gideon v. Wainwright, one of the most important cases in the history of the Supreme Court, and the one from which indigent defendants gained their own right to counsel 51 years ago. The omission is intentional, of course, and its effect is to emphasize, candidly, again, that this Court believes that there are really two paths to the constitutional right to counsel—one for people who can afford a lawyer and one for those who can't.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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