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.

One case the dissenters did cite was Powell v. Alabama, the case that preceded Gideon in the lineage of this constitutional right. When the Powell court had cause to describe the essence of competent counsel, when the justices of that era pondered what was expected of every lawyer, they came up with this formula:

In any event, the circumstance lends emphasis to the conclusion that, during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself (emphasis added by me).

Today, that reasonable standard is absent from the Court's jurisprudence. The law today as it has been shaped by the justices does not require lawyers to provide "consultation, thoroughgoing investigation and preparation" in order to satisfy a client's constitutional right to counsel. Instead, we have a dubious standard from one of the most cynical cases in modern Court history, Strickland v. Washington, decided in 1984, which excuses even gross incompetence by attorneys so long as it is conceivable that such incompetence would not have made a difference in the outcome of the case.

That infamous case of the sleeping lawyer in Texas, the one who slept through portions of his client's capital murder trial? For years the courts cited Strickland to defend that defendant's conviction. Every day in this country, in fact, trial judges cite Strickland to uphold convictions following trials in which lawyers—court-appointed and otherwise—provided negligent representation. If the right is as "precious," as the Kaley dissenters suggest, you would think they might do something about that. In any event, let's continue with their analysis:

Indeed, we recently called the “right to select counsel of one’s choice . . . . the root meaning of the constitutional guarantee” of the Sixth Amendment. United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148 (2006). The Amendment requires “that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best.” Id.,at 146. An individual’s right to counsel of choice is violated “whenever the defendant’s choice is wrongfully denied,” and such error “pervades the entire trial.” Id., at 150. A violation of this right is therefore a “structural error,” ibid ; that is, one of the very few kinds of errors that “undermine the fairness of a criminal proceeding as a whole.” United States v. Davila , 569 U. S. ___, ___ (2013) (slip op., at 12).

It would be difficult to find anyone in America who would disagree with this stirring analysis. Except that the Court has not consistently applied it in cases involving criminal defendants, and especially capital defendants, who are too poor to pay for a lawyer. In those instances, the indigent defendant of course has no opportunity to choose "counsel he believes to be the best" and instead has to settle for whatever he gets. The "error" that "pervades the entire trial" is no less an error in the case of that defendant but that's not what the Court has found.

It is only at the end of this analysis that the dissenters note, in a single clause in a single sentence, that of course nothing in their writing should be taken to mean that any of the noble things said about a person's right to counsel extends to an indigent person's right to counsel:

It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. Wheat v. United States, 486 U. S. 153, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred counsel if it has legitimate reasons not to do so. Morris v. Slappy, 461 U. S. 1, 11–12 (1983). But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial (emphasis added by me).

The omission of any positive reference to America's indigent defendants—those men and women who cannot afford an attorney, the hundreds of thousands of them who wash up each year against the shores of our courtrooms—is simply jaw-dropping in a dissent that otherwise so mournfully laments the preclusion of a far rarer restriction on the right to counsel. The Kaleys, the couple whose right to the lawyer of their choice was thwarted by federal forfeiture laws, are still better off than the vast majority of truly indigent defendants whose attorneys are assigned randomly, often just minutes before their first court appearance.

The omission is telling, too, because it is consistent with the slight-of-hand way in which the Roberts Court has dealt with other recent right-to-counsel cases. In Rothgery v. Gillepsie County, for example, the Court concluded that the right to counsel "attaches" at a defendant's initial appearance before a magistrate—but then refused to say that counsel is constitutionally required at that point. Likewise, in Padilla v. Kentucky in 2010, and again in Missouri v. Frye and Lafler v. Cooper in 2012, the Court acknowledged rights to counsel but then refused to offer remedies necessary to enforce those rights. Even still, the Chief Justice did not fully endorse the majority holdings in any of those cases.

What the dissenters did here is precisely what the Court did in another recent right to counsel case, United States v. Gonzalez-Lopez, in which Justice Antonin Scaliam, writing for the majority, made it clear that "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." This makes sense, of course, on a practical level. Beggars can't be choosers even under a constitutional regime. The problem is that the Court refuses to ensure that the beggar, the indigent defendant, is given competent representation even though he cannot chose who is to deliver that for him.

If the dissenters truly mourn for the fading right to counsel, about the individual who has but his lawyer and the Constitution standing between her and the might of the government, they would immediately overturn Strickland v. Washington. Or, at the very least, they would cite Gideon, the single  indispensable case in this line of jurisprudence, when earnestly discussing the deprivation of a meaningful right to counsel. This dissent is such a backhanded defense of the right to counsel that it's barely a defense at all.