No right is secure: Thomas , Gorsuch and Alito disparage right to counsel set in Gideon v. Wainwright

The breadth of the threat to well established rights is stunning.  In the past few weeks Justice Clarence Thomas has reportedly directly lobbied Senators to place a former clerk on the Court of Appeals for the D.C. Circuit; questioned Times v. Sullivan; disparaged Times v. Sullivan;and declared that Roe v. Wade and Dred Scott v. Sanford are among the worst decisions of the court and the fruit of the same constitutional doctrinal defects.  The targets have expanded to include a joint Thomas/Gorsuch attack on the right to effective counsel beginning with Powell v. Alabama which reversed the nine notorious death sentences in the Scottsboro cases, the injustices of which are described in this contemporaneous ACLU report.

Fifty five years ago the United States Supreme Court appointed a future member Abraham Fortas to argue for Clarence Gideon, an indigent petty thief who demanded a lawyer in a hand-written petition to the high court.  The landmark decision in Gideon v. Wainwright embedded in constitutional doctrine the proposition that if a criminal defendant anywhere in United States faced criminal charges he/she is entitled to appointed counsel if the defendant cannot afford to hire a lawyer.  The principle of adequate representation was embedded in our jurisprudence, if not always in our practice.Last week in Garza v. Idaho the Supreme Court boldly reaffirmed the heart of the Gideon mandate, saying:

The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance of Counsel for [their] defence.” The right to counsel includes “‘the right to the effective assistance of counsel.’” Strickland v. Washington, 466 U. S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970)). Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) “that counsel’s representation fell below an objective standard of reasonableness,” 466 U. S., at 687–688, and (2) that any such deficiency was “prejudicial to the defense,” id., at 692. “In certain Sixth Amendment contexts,” however, “prejudice is presumed.”

 But not so fast...Thomas, dissenting, joined by Neil Gorsuch and in part by Samuel Alito, opened an attack on the Court's use of the principle of due process to afford competent counsel to nine African American men facing charges for alleged rapes of two young white women in Alabama. Three trials consumed a single day and all nine were sentenced to death. In an absurd gesture the trial judge had appointed every lawyer in the crowded courtroom to represent the young men in a capital trial about to unfold a week after the men were arrested traveling north in freight cars.   The "Scottsboro Boys" were the subject of a national, then international campaign drawing attention to Jim Crow justice.  But for Justices Thomas and Gorsuch it was the beginning of an unwarranted departure from the original understanding of the Sixth Amendment's declaration of the right to counsel.  Thomas laments:

The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. Powell [v. Alabama, 287 U.S. 45 (1932)], supra, at 71. Soon thereafter, the Court held that the Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938). And in 1963, the Court applied this categorical rule to the States through the Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, supra, at 344. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right . . . to have the Assistance of Counsel.” Amdt. 6.

 In the Thomas and Gorsuch view things got worse as the Court "recognized the right to effective assistance of counsel,[McMann v. Richardson, 397 U. S. 759, 771 (1970)] and in Strickland v. Washington provided a remedy to those prejudiced by a defense lawyer's incompetence. ... Then, in Strickland [v. Washington, 466 U. S. 668, 687 (1984)], the Court crafted the current standard for evaluating claims of ineffective assistance of counsel. Without discussing the original meaning of the Sixth Amendment...".

Thomas and Gorsuch object to the remedy as lacking constitutional grounding.  Notably they complain that 

Strickland does not explain how the Constitution requires a new trial for violations of any right to counsel....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 six member majority to whose opinion Thomas, Gorsuch and Alito dissent, had decided, as the Clerk's Syllabus explains that 

[W]ithin the division of labor between defendants and their attorneys, the “ultimate authority” to decide whether to “take an appeal” belongs to the accused. Jones v. Barnes, 463 U. S. 745, 751.  Garza’s attorney rendered deficient performance by not filing a notice of appeal in light of Garza’s clear requests. Given the possibility that a defendant will end up raising claims beyond an appeal waiver’s scope, simply filing a notice of appeal does not necessarily breach a plea agreement. Thus, counsel’s choice to override Garza’s instructions was not a strategic one. In any event, the bare decision whether to appeal is ultimately the defendant’s to make.

 Though framed as an appeal for caution in expanding rights with weak doctrinal foundation, the attack seems to me to be fundamental. Wielding the sword of original understanding the dissenters disparage the idea of a "reliable result".  Only Roberts, Kavanaugh, and Alito votes prevent that attitude from becoming the law of the land.  The Thomas Gorsuch dissent would leave the problem to the tender mercies of state governments.  From north to south many states, e.g. New York and Lousiana have failed to provide an adequate public defender system.

An excellent way to track such issues is to follow Brooklyn Defender @scotthechinger on Twitter.  This recent thread highlights the threat to access to justice posed by the Thomas/Gorsuch/Alito axis.  As with so much else today we are reminded that freedom is a constant struggle.  A luta continua!