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In Garza v. Idaho, Thomas and Gorsuch Make Scalia Smile

The right to an attorney is an assumed staple in American Criminal Procedure.  Is it though?

A dissent in a Supreme Court case allows justices to think aloud, to explore issues not directly before the court, and to differentiate points of law.  While not every dissent leads to fun quips about the majority’s reasoning being “pure applesauce,” they do leave us wanting to know more.

Justice Thomas’ dissents are intriguing because I really want to see what it would be like to live in his America.  As I noted last week, his opinions have earned the support of Justice Gorsuch.  We see, in real time, the preservation and continuation of a jurisprudence that would make Scalia proud.

When we look at the foundational concerns regarding constitutional rights, we see Thomas and Gorsuch willing to rethink accepted judicial policy.  And I say “policy” on purpose.

Last time, it was a dissenting opinion on the topic of Incorporation and its vehicle, the 14th Amendment’s Due Process Clause.  Thomas and Gorsuch preferred the Privileges and Immunities route.

This time, it’s a case dealing with the right to an attorney.

I’ll give you some background.

  • Garza did some crime, didn’t want to do all the time, so he accepted a plea agreement, which included a waiver of his right to appeal certain aspects of his case, namely his sentence length.
  • Dude tells his attorney he wants to appeal his sentence length, something he isn’t permitted to do.  So the attorney says “nah,” and chooses to go against his client’s wishes and NOT file an appeal in order to keep the plea bargain intact.
  • The guy sues everybody and claims that his counsel was ineffective and that the attorney should have filed the appeal.

Surprisingly, during oral arguments, Justice Ginsburg remarked that it appeared that the defendant was trying to “have his cake and eat it too.”  He was facing life in prison and had it reduced to 10 years.  Then after accepting that arrangement, he wanted to appeal to have it reduced even further, which of course was proscribed by the agreement.

The opinion was released today.  The 6-3 decision held that some made up standards regarding attorneys and clients apply even in cases where the defendant has waived certain rights.

Justice Sotomayor wrote the majority opinion and was joined by Ginsburg, Breyer, Kagan, Roberts, and Kavanaugh.  Justice Thomas dissented and was joined by Gorsuch and Alito.

You can read the opinion here and listen to oral arguments here.

I will skip any discussion of the standards used to determine this case because they don’t add anything of value to the overall goal of Thomas’ dissent.  Thomas, Gorsuch, and Alito all agreed that, if we accept this standard, the majority is still wrong, but Alito would not join the last part of the dissent, which is what I would like to focus on.

The majority opinion and oodles of precedent are predicated on Gideon v. Wainwright.

Gideon recognized the right of individuals to have an attorney provided to them in all criminal cases in state court.  This of course created the public defender system that we know of today.  

The relevant portion of the 6th Amendment reads, “the accused shall enjoy the right…to have the assistance of counsel for his defense.”

In the 1960’s the Supreme Court read that to mean that the accused must be provided an attorney.

Part III of Justice Thomas’ dissent reminds us, as Scalia had pointed out in various opinions and interviews, that this is a fundamental misunderstanding of what rights are in our system.

Rights can be understood as positive or negative.  This formulation posits that certain rights reflect an innate unmovable standard that cannot be violated and other rights reflect an inherent entitlement to something.  

Positive rights include the proposed right to free college, to healthcare, to government benefits in general.  While negative rights include the free exercise of religion, the right to avoid testifying against oneself, and the right to bear arms. Negative rights restrain government and protect citizens. The government cannot make you do something.  Positive rights compel the government to do something for you or provide you with some service.

When we look at the right to an attorney, we see two options:

  • A positive right – the right to be provided an attorney.
  • A negative right – the right to be free from the government telling you that you CANNOT have an attorney.

The Bill of Rights guarantees negative rights.  If it doesn’t, then the Second Amendment includes the right of the indigent to be provided firearms if they cannot afford them. 

No, it’s the right of the people to not be told what to do.  The government cannot prevent you from owning firearms and the government cannot prevent you from having an attorney.  That’s it.

Justice Thomas explains why this is in his dissent.

“In  addition  to  breaking  from  this  Court’s  precedent, today’s  decision  moves  the  Court  another  step  further from  the  original  meaning  of  the  Sixth  Amendment.    The  Sixth Amendment provides that, “[i]n all criminal prosecutions,  the  accused  shall  enjoy  the  right  .  .  .  to  have  the  Assistance of Counsel for his defence.”  That provision “as originally  understood  and  ratified  meant  only  that  a  defendant  had  a  right  to  employ  counsel,  or  to  use  volunteered services of counsel.”  Padilla v. Kentucky, 559 U. S. 356, 389 (2010) (Scalia, J., dissenting).  Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel.  The result  is  that  convicted  criminals  can  relitigate  their  trial  and    appellate    claims    through    collateral    challenges couched  as  ineffective-assistance-of-counsel  claims.

Our precedents seek to use the Sixth Amendment right  to  counsel  to  achieve  an  end  it  is  not  designed  to  guarantee.    The  right  to  counsel  is  not  an  assurance  of  an  error-free  trial  or  even  a  reliable  result.    It  ensures  fairness  in  a  single  respect:  permitting  the  accused  to  employ the services of an attorney.  The structural protections  provided  in  the  Sixth  Amendment  certainly  seek  to  promote  reliable  criminal  proceedings,  but  there  is  no  substantive  right  to  a  particular  level  of  reliability.    In  assuming   otherwise,   our   ever-growing   right-to-counsel precedents  directly  conflict  with  the  government’s  legitimate  interest  in  the  finality  of  criminal  judgments.    I  would  proceed  with  far  more  caution  than  the  Court  has traditionally demonstrated in this area.

History proves that the States and the Federal  Government  are  capable  of  making  the  policy determinations  necessary  to  assign  public  resources  for appointed counsel.  The Court has acknowledged as much. Betts,  316  U.  S.,  at  471  (declining  to  extend  the  right  to counsel  to  the  States  because  “the  matter  has  generally been  deemed  one  of  legislative  policy”).    Before  the  Court  decided Gideon,  the  Court  noted  that  “most  of  the  States  have by legislation authorized or even required the courts to assign counsel for the defense of indigent and unrepresented  prisoners.    As  to  capital  cases,  all  the  States  so  provide.   Thirty-four  States  so  provide  for  felonies  and  28for misdemeanors.” Bute, 333 U. S., at 663 (internal quotation  marks  omitted).    It  is  beyond  our  constitutionally  prescribed  role  to  make  these  policy  choices  ourselves. Even  if  we  adhere  to  this  line  of  precedents,  our  dubious  authority  in  this  area  should  give  us  pause  before  we  extend these precedents further.”

I would urge you all to read the majority opinion and the whole dissent as I can’t possibly copy and paste all of it here.

This dissent reflects a deep respect for what our nation was supposed to be like. It abides by the simple fact that the Court is not suited to and cannot make policy judgments.  If a change is needed, legislation or a constitutional amendment is the only sufficient means of effecting that change.  It is not up to the Court to implement changes no matter how well-intentioned they are.

Is it a good idea for defendants to be provided counsel if they cannot afford it? Sure.  Has that been enshrined in our constitution? No.

Justice Thomas and Justice Gorsuch are not willing to go beyond the text. Scalia would be proud.

Over the summer, a conservative commentator on Twitter, Paula Bolyard, shared a lyric parody of what we should expect of a Supreme Court Justice.

“I see a little silhouette of a judge

Scare the libs, scare the libs

Will you do the Constitution?

Thunder bolt and lightning

Very very frightening me

Like Scalia, Like Scalia

Like Scalia, Clarence T.”

In this regard, Gorsuch has not disappointed.


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