Today’s Decisions II: A Different Kind of Conservative

When Ann Althouse said that Alito was a different kind of conservative than Scalia, she was in a sense right, although in a rather different way that she intended. From a left-liberal (if not left-communitarian) perspective, Alito is clearly worse. Scalia does have a libertarian streak; he is, albeit in a very inconsistent and erratic manner, willing to enforce the clear textual demands of the Bill of Rights, while the less theoretical and even more results-oriented Alito won’t. Today’s decision in U.S. v. Gonzales is a case in point.

The case concerned the question of whether or not the Sixth Amendment’s right to counsel clause was violated when the state refused to allow a defendant to hire her first choice of legal defense. Alito’s dissent claimed that a Sixth Amendment violation required a showing that the choice of lawyer affected the outcome of the trial. Leaving aside the fact that this is virtually impossible, it also doesn’t make any sense. As Scalia (joined in an unusual coalition by the court’s four more liberal members) says:

Stated as broadly as this, the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair…

[…]

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.” In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation complete.”

Exactly right. If the Sixth Amendment means anything, it means that the state cannot obstruct a defendant’s choice of attorney. The unknowable question of whether or not the trial would have come out differently is beside the point.

Now, of course, it’s not a conincidence that Scalia’s textualist conscience was awoken in a holding more likely to involve defendants with financial resources than a typical civil liberties case. But nonetheless, when he’s right he’s right, and in this case he is.