Scalia’s Criminal Law Legacy: Sixth Amendment Edition (Part 2)

For a second (and abbreviated) post on Scalia and the Sixth Amendment (first post here), I turn to the Sixth Amendment’s last-enumerated right: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” At minimum, the clause means that the government cannot bar an accused’s privately-retained attorney from the courthouse. (At the time of the founding, England prohibited most felony defendants from employing counsel.) Over time, the Supreme Court has interpreted the clause to guarantee five distinct rights: (1) the right to court-appointed (i.e., publicly-funded) counsel, if the accused cannot afford to hire counsel; (2) the right to counsel of the accused’s choice; (3) the right to effective assistance of counsel; (4) the right to conflict-free counsel; and (5) the right to forgo counsel and represent oneself.

I had initially planned to cover at least three of the above categories, but I’ve committed to bring this series to a close within a month of its start. Due to unexpected obligations at work my pace has lagged. In light of my approaching deadline, I’ll limit myself here to the right of self-representation . . .

Since Faretta v. California, 422 U.S. 806 (1975), the Supreme Court has recognized that the Sixth Amendment guarantees a defendant the right to waive his right to counsel to represent himself at trial. The right of self-representation is not made explicit in the Sixth Amendment’s text. As Justice Breyer explained in Indiana v. Edwards, 554 U.S. 164 (2008), the Court

implied that right from: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused; (4) the absence of historical examples of forced representation; and (5) “respect for the individual.”

Faretta is not universally beloved. In Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152 (2000), which declined to recognize a right of self-representation on appeal, the Court cast a cold eye on Faretta. Justice Breyer’s concurrence noted that “judges closer to the firing line have sometimes expressed dismay about [Faretta’s] practical consequences.” Doubtless, in most cases of pro se representation the adage “one who is his own lawyer has a fool for a client” is proved true. I’ve tried two pro se cases. In one, the defendant took the stand and admitted to the crime. In the second, in which the defendant was accused of his beating his girlfriend, he stood up for closing argument, stated “Let me just say it takes two to tango,” and then sat down. Both defendants were quickly convicted.

Scalia defended the right of self-representation against doubts about its wisdom and constitutional pedigree. In Martinez, he concurred only in the judgment, declaring, “I do not share the apparent skepticism of today’s opinion concerning the judgment of the Court (often curiously described as merely the judgment of ‘the majority’) in Faretta . . . .” In Edwards, Scalia, joined only by Justice Thomas, disagreed with the Court’s allowing a state to deny the defendant the right to represent herself when she is not mentally competent to conduct a trial without counsel.

In one sense, Scalia’s opinions on self-representation aren’t standard Scalia fare. He believed Faretta was correctly decided, but wasn’t certain the right fell under the Sixth Amendment. If he’d authored Faretta he “might have rested the decision upon the Due Process Clause rather than the Sixth Amendment.” Here, Scalia seems to suggest that self-representation is a “substantive due process” right. During his tenure on the Court, Scalia was a consistent and vocal critic of the substantive due process doctrine, which he argued was an “infinitely plastic concept” that allowed judges to impose their personal preferences without constitutional authority. Scalia was almost always scrupulous in identifying the source of a right (or the lack thereof)—but not here. To justify the right of self-representation, Scalia also invoked “the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice.” This passage called to my mind Justice Kenney’s (in)famous words in the abortion ruling Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Scalia had ridiculed Kennedy’s proclamation as the “famed sweet-mystery-of-life passage” and “the passage that ate the rule of law.”

In another sense, Scalia’s affinity for the self-representation right is only natural. No fan of paternalism, he could appreciate that Faretta allowed for self-determination, notwithstanding that in most cases self-representation is the fool’s prerogative. It’s not surprising that the Justice who once referred to judges as “employee[s] of the State” would not be keen to have another “employee of the State” (a majority of defendants are represented by public defenders or private attorneys who accept appointments) commandeer the defense of an unwilling defendant. Scalia also spent a career opposing what he saw as the proclivity of judges to contort the Constitution in the service of some supposed higher good. In Edwards he wrote, “In my view the Constitution does not permit a State to substitute its own perception of fairness for the defendant’s right to make his own case before the jury.” And then, the Framers wouldn’t have approved either: “I have no doubt that the Framers of our Constitution, who were suspicious enough of governmental power-including judicial power-that they insisted upon a citizen’s right to be judged by an independent jury of private citizens, would not have found acceptable the compulsory assignment of counsel by the government to plead a criminal defendant’s case.”