Allison Hayward has a good summary here at NRO today of yesterday’s ruling in Randall v. Sorrell, the Vermont campaign-finance case. And she puts her finger on the problem in cases of this kind: they more or less require the justices to make up the meaning of the First Amendment as they go along. As Robert Nagel put it in another context a couple of months ago in the Weekly Standard, “The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench.” The problem may go deeper in this particular area, though. It may not be “constitutional law as set out in the cases,” but the First Amendment itself, as written, that has this inexorable effect whenever judges try to “enforce” it, in the campaign finance context or any other. This suggests, to me anyway, that the First Amendment ought not to be, and probably was never intended to be, given effect by judicial rulings.
Not so the Sixth Amendment’s right to counsel, which gave us another interesting case handed down yesterday, U.S. v. Gonzalez-Lopez, prompting thoughts along similar lines to those above. I think this was the first direct confrontation between two justices expected to be commonly in agreement, the veteran Scalia and the newbie Alito. In this 5-4 ruling Scalia wrote for the Court, joined by the liberals Stevens, Souter, Ginsburg, and Breyer, while Alito wrote the lone dissent, joined by Roberts, Kennedy, and Thomas. I think Scalia gets the better of the argument here, with results that look “liberal” but reasoning that is decidedly more conservative than that of the dissent from the “right.”
Gonzalez-Lopez, on trial in federal court in Missouri on drug charges, was denied the hired counsel of his choice for reasons that turned out to be improper (a holding of the Eighth Circuit that the government did not challenge on certiorari). He was represented by another attorney at trial (also retained privately, not court-appointed), but the question was whether his deprivation of his first-choice lawyer should be considered a Sixth Amendment violation of his right to the assistance of counsel, and his conviction reversed as a consequence.
Scalia and the liberal justices opt for a bright-line “yes” answer to this question, reasoning that the Sixth Amendment protects the right of the accused to “be defended by the counsel he believes to be best,” and holding that reversal of a conviction is the automatic remedy. The lawyer he would not have chosen first may actually turn out to be the better advocate, but the Sixth Amendment protects the defendant’s right to choose, not his right to an “objectively” better advocate in someone else’s judgment.
Alito, on the other hand, would have subjected cases like this to a “harmless error” rule, making every appeal in a case involving improper denial of first-choice counsel turn on a judicial estimation of whether there was serious enough harm to the defendant’s chances of acquittal in the substitution of some second-choice lawyer for the one preferred.
Scalia, in my opinion, rightly refused Alito’s invitation to appellate judges to play Carnac the Magnificent, musing about what results would have occurred if a trial judge had left a defendant’s preferred counsel in place.
The common thread here is this: As deciding what campaign-finance regime is best for the health of electoral politics is not the proper business of judges, neither is it their rightful place to say that a criminal defendant’s lawyer was “good enough” if he wasn’t the counselor the defendant had a right to hire.
Both such judgments are downright non-judicial in character. And the point is not whether judges would choose more wisely or less wisely if we were to charge them to make such judgments. It’s that we haven’t charged them to make such judgments, but have left them to others.