Roberts and Alito Do Not Join Justice Thomas’ Discussion of the Original Understanding of the Right to Counsel

June 20th, 2011

In Turner v. Rogers Justice Breyer held for the majority that in some cases, during a civil contempt hearing that may result in incarceration, a defendant has a right to counsel, or perhaps some other “alternative procedural safe-guards.” Justice Thomas dissented for Chief Justice Roberts, and Justices Scalia and Roberts.

Interestingly, the Chief and Justice Alito did not join Thomas’ Part I-A, which provided an originalist explanation of the right to counsel:

Under an original understanding of the Constitution,there is no basis for concluding that the guarantee of due process secures a right to appointed counsel in civil con-tempt proceedings. It certainly does not do so to the ex-tent that the Due Process Clause requires “‘that our Government must proceed according to the “law of theland”—that is, according to written constitutional and statu-tory provisions.’” Hamdi v. Rumsfeld, 542 U. S. 507, 589 (2004) (THOMAS, J., dissenting) (quoting In re Winship, 397 U. S. 358, 382 (1970) (Black, J., dissenting)). No one contends that South Carolina law entitles Turner to ap-pointed counsel. Nor does any federal statute or constitu-tional provision so provide. Although the Sixth Amend-ment secures a right to “the Assistance of Counsel,” it does not apply here because civil contempt proceedings are not “criminal prosecutions.” U. S. Const., Amdt. 6; see ante, at8. Moreover, as originally understood, the Sixth Amend-ment guaranteed only the “right to employ counsel, or touse volunteered services of counsel”; it did not require the court to appoint counsel in any circumstance. Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (SCALIA, J., dissenting) (slip op., at 2); see also United States v. Van Duzee, 140U. S. 169, 173 (1891); W. Beaney, The Right to Counsel in American Courts 21–22, 28–29 (1955); F. Heller, The Sixth Amendment to the Constitution of the United States 110 (1951).

I think the emphasized sentence, which cites Scalia’s opinion from Padilla, and casts doubt on Gideon as an originalist matter, may have been too much for the Chief and Alito to join:

The Sixth Amendment as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel. See, United States v. Van Duzee 140 U. S. 169173 (1891) ; W. Beaney, Right to Counsel in American Courts 21, 28–29 (1955). We have held, however, that the Sixth Amendment requires the provision of counsel to indigent defendants at government expense, Gideon v. Wainwright 372 U. S. 335344–345 (1963) , and that the right to “the assistance of counsel” includes the right to effectiveassistance, Strickland v. Washington 466 U. S. 668686 (1984)

Roberts and Alito are not originalist, as are Thomas and Scalia. That they didn’t see fit to join this section, or even have it modified, speaks volumes.

However, all of the dissenters join a textualist argument about the interplay between Due Process and the 6th Amendment:

But if the Due Process Clause created a right to ap-pointed counsel in all proceedings with the potential fordetention, then the Sixth Amendment right to appointed counsel would be unnecessary. Under Turner’s theory,every instance in which the Sixth Amendment guarantees a right to appointed counsel is covered also by the Due Process Clause. The Sixth Amendment, however, is the only constitutional provision that even mentions the assis-tance of counsel; the Due Process Clause says nothing about counsel. Ordinarily, we do not read a general provi-sion to render a specific one superfluous. Cf. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 384 (1992) (“[I]t is a commonplace of statutory construction that the specific governs the general”).

But a more complete description of this Court’s cases is that even when liberty is at stake, the Court has required appointed counsel in a category of cases only where itwould have found the Sixth Amendment required it—incriminal prosecutions.

The dissenters also include a veiled attack on substantive due process (which this is not, it relies on procedural due process under Matthews v. Eldridge), relying on Albright v. Oliver, and Scalia’s opinion in Stop the Beach:

The fact that one constitu-tional provision expressly provides a right to appointed counsel in specific circumstances indicates that the Con-stitution does not also sub silentio provide that right farmore broadly in another, more general, provision. Cf. Albright v. Oliver, 510 U. S. 266, 273 (1994) (plurality opinion) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amend-ment, not the more generalized notion of ‘substantive dueprocess,’ must be the guide for analyzing these claims” (internal quotation marks omitted)); id., at 281 (KENNEDY, J., concurring in judgment) (“I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendment without refer-ence to more general considerations of due process”); Stop the Beach Renourishment, Inc. v. Florida Dept. of Envi-ronmental Protection, 560 U. S. ___, ___ (2010) (opinion of SCALIA, J.) (slip op., at 16) (applying Albright to the Tak-ings Clause).