June 26, 2006

Let's say it again: Alito is not "Scalito."

The decision in Gonzalez-Lopez, just handed down, is no surprise. Justice Scalia joined the liberals -- Stevens, Souter, Ginsberg, and Breyer -- which is what I thought would happen after reading about the oral argument. Remember? Scalia will make my list of quotes of the year with his "I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win."

In written form, that notion of what the right to counsel is looks like this:
[The Sixth Amendment] commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment , including the Counsel Clause.” Strickland, supra, at 684–685. In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.”

Alito pens the dissent (and is joined by the Chief and Justices Kennedy and Thomas):
The majority states that the Sixth Amendment protects “the right of a defendant who does not require appointed counsel to choose who will represent him.”What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant’s counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant’s counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment.

In those italics, I hear Scalia being scolded: I thought you were the big textualist. The word "assistance" or one of its variants appears 19 times in Alito's (relatively short) opinion. The count for Scalia (whose opinion is slightly longer): 8.


Unknown said...

Question: Do the Supremes ever engage in backroom bargaining?

I ask in the offchance Alito wrote this opinion in exchange for support in another, say... Hamdan?

FXKLM said...

It's my understanding that there is some backroom bargaining as to the details of individual cases. Justices will often moderate some of the language in a particular opinion in an effort to win more votes. Bargaining across multiple cases, however, is clearly inappropriate.

Unknown said...

Oh,I completely agree that bargaining across cases would be inappropriate. But does it ever happen?

A more palatable hypo might be, Justice A feels strongly about Case X but isn't sure about Case Y. Justice B feels strongly about Case Y but not about Case X. So, Justice A supports Justice B on Case Y in exchange for support on Case X.

If that makes any sense...

Richard Dolan said...

I hear the same echo as Ann when she writes: "In those italics, I hear Scalia being scolded: I thought you were the big textualist." And I think Scalia heard it, too, even though it didn't bother him much.

His response was to say, far more often than he used the word "assistance," that (a) the Gov't conceded that the Sixth Amendment afforded the defendant the right to counsel of his choice, and that right had been violated in this case, and (b) the SCOTUS had held that the Sixth Amendment guaranteed a defendant's right to counsel of his choice, as much in several cases, some of considerable vintage. With respect to the Sixth Amendment, Scalia has been a consistent proponent of the rights of a defendant (even if he is not always concerned with the nuances of text, as Alito shows in this case). In that vein, Scalia has consistently upheld the defendant's position regarding the Confrontation Clause, rejecting the multi-factored balancing tests occasionally invented to avoid its application in particular cases (e.g. where child-witnesses need to be "confronted").

Scalia tries to make sense of the structural vs. trial error distinction, and its role in determining when harmless error analysis applies, by offering a test for determining when a constitutional violation is "cmoplete." "Ineffective assistance" claims are subject to harmless error analysis because the "source" of the constitutional rule requiring effctive assistance is the Due Process Clause -- that provision is concerned with the right is to a fair trial, and thus the issue is whether the performance of counsel was so bad that the defendant got substantially less than that. In contrast, according to Scalia, the Sixth Amendment guarantees the right to counsel of one's choice (subject to limitations not relevant here), and thus the violation of that right is "complete" when the defendant is denied his chosen attorney for inadequate reasons.

That distinction puts a lot of weight on matters of form, and I can see how many would reject it. The pragmatic reason why ineffective assistance claims have to be subject to harmless error analysis is that a trial lawyer's tactical judgments can always be (and very often are) second-guessed after the verdict is in. No such pragmatic reason applies to the Sixth Amendment right to counsel of one's choice that Scalia is determined to protect. As a practial matter, there has to be something pretty strange going on in a case for a trial court to interfere with a defendant's choice of retained counsel. Here it appears that the trial court had some prior experience with the defendant's chosen attorney, which may be why the defendant wanted that lawyer. Some defendants also occasionally want an out-of-state attorney where the defense expects to have to do battle with the trial judge in a way that a local attorney worried about appearing before the same judge in a later case may be reluctant to do (or at least to do wholeheartedly).

This case was also an interesting sidelight to the spitballs that Scalia and Stevens were throwing at each other in two other cases today, the Kansas death penalty case and the Washington state sentencing case. In both of those cases, Stevens says he thinks the Court should not take cases where the state prosecutor is the appellant, and the import of the case will be to review a state supreme court's perhaps too restrictive reading of federal constitutional protections for a defendant. Scalia wrote concurrences taking on his arguments. Stevens, of course, joined Scalia's decision holdint that a violation of the Sixth Amendment right to choose one's own attorney is not subject to harmless error analysis.

37383938393839383938383 said...

Scalia is a textualist. Alito is a literalist. We shall see if Alito keeps this up once his elderly law clerks who once worked for Ashcroft depart.

37383938393839383938383 said...

The pragmatic reason why ineffective assistance claims have to be subject to harmless error analysis is that a trial lawyer's tactical judgments can always be (and very often are) second-guessed after the verdict is in.

You're missing the point. Ineffective assistance applies when there is a trial. You can have a Sixth Amendment claim even if there is no trial (generally the Sixth Amendment applies once investigation ends, e.g., at indictment). The framework for the ineffective assistance should not carry over to other Sixth Amendment claims, where there is no trial (after indictment but before trial). That would make no sense. The dissent is nonsense.

Simon said...

You have to give Scalia credit to the extent that he is equally willing to run potential allies through the rip saw as readily as he is friends.As much as I appreciate the consistency, I do have to wonder if it's really an effictive strategy for getting and keeping votes.

Ifind myself hard-pressed to evaluate this case; most of the folks who I trust on this sort of thing came out in advance for what ended up being the majority position, and I go against Our Hero at my peril, but I'm really not sure I can go along with Scalia on this one.

Sooner or later - and it may even be already; Ralph Rossum has just published a book thatI have yet to read on Scalia's jurisprudence - someone will write an authoritative survey of Scalia's jurisprudence, and I suspect that in retrospect, it will become readily apparent that it is his fourth and sixth amendment jurisprudence which is of the most consequence. Those are the areas where he has been most careful to get to the heart of what is really protected, strip away what isn't and enforce what is.

37383938393839383938383 said...

It is apparent now, Simon.