Continuing to demonstrate his extremism, National Review Online blogger Ed Whelan suggested today that the Supreme Court's landmark decision in Gideon v. Wainright establishing that states are constitutionally required to provide counsel for indigent defendants in all criminal trials is an example of "liberal judicial activism."
In today's edition of his near-daily series of blog posts titled, "This Day in Liberal Activism," Whelan quotes from a biography of former Supreme Court Justice William Brennan noting that on March 18, 1963, "the liberal bloc [of the Supreme Court] overturned four of the Court's long-standing precedents." Whelan -- a former clerk for Justice Antonin Scalia and a former high-ranking Justice Department official -- then goes on to describe the four cases, including Gideon:
In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a "square rejection of long-accepted principles governing the nature and scope of the Great Writ," the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.
But not every conservative thinks so poorly of Gideon. In fact, Chief Justice John Roberts said during his confirmation hearing: "I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage."
From Roberts' confirmation hearing:
LEAHY: Let's go to another precedent that I know moved me a great deal, Gideon v. Wainwright.
LEAHY: As a young law student, my wife and I had an opportunity to have lunch with Hugo Black shortly after that. One of the most memorable times I had.
He's a former senator. He recognized the Sixth Amendment's guarantee to counsel in a criminal, with a fundamental right to a fair trial. He called it an obvious truth. In an adversary system of criminal justice, any person held in a court who's too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for them.
A wonderful book, "Gideon's Trumpet," that Anthony Lewis wrote.
LEAHY: Doesn't Gideon stand for the principle that it would be meaningful -- such a fundamental right as the right to counsel -- it requires assurances that it can be exercised?
ROBERTS: Yes, I think so.
I've often said that a lot of these difficulties, particularly in the areas of the legal errors being raised and collateral review -- a lot of those difficult questions could be avoided if people had competent counsel from the very beginning.
LEAHY: Well, doesn't the same principle embodied in Gideon, that the Constitution guarantees a person's ability to exercise fundamental constitutional rights -- doesn't that apply to other constitutional rights?
I mean, to be meaningful, we have these rights; they've also got to be real in people's lives.
ROBERTS: Well, I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage.
It's not because you have a right to counsel in the abstract. It was the recognition that having counsel is a way to ensure the protection of your other rights that you may not even be aware of.