Earlier this week, Clarence Thomas and Neil Gorsuch filed a dissent arguing that Gideon v. Wainwright was wrongly decided:
In addition to breaking from this Court’s precedent, today’s decision moves the Court another step further from the original meaning of the Sixth Amendment. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” That provision “as originally understood and ratified meant only that a defendant had a right to employ counsel, or to use volunteered services of counsel.” Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers’ expense, but a right to effective counsel. The result is that convicted criminals can relitigate their trial and appellate claims through collateral challenges couched as ineffective-assistance-of-counsel claims. Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area.
They go on to imply that it was judicial overreaching when the Supreme Court did not uphold the vredict reached by the show trial of the Scottsboro boys.
As Justice Stevens once argued:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.
While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old,the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.
If, as an original matter, the Sixth and Fourteenth Amendments mean that you can imprison or execute someone who had no access to effective counsel in a contemporary criminal trial, then the answer is “originalism is an incredibly dumb and pernicious theory no judge should use.” But the need of such people to self-own to show their Deep Commitment to Principle is strong. At least Gorsuch will only be on the Court for another 4 decades or so.