HARVARD JOURNAL
of
LAW & PUBLIC POLICY
VOLUME 43, NUMBER 3 SUMMER 2020
ESSAYS
T
HE ROLE OF THE EXECUTIVE
William P. Barr ........................................................................ 605
C
IVIC CHARITY AND THE CONSTITUTION
Thomas B. Griffith ................................................................... 633
ARTICLES
S
IXTH AMENDMENT FEDERALISM
Louis J. Capozzi III ................................................................. 645
T
AKING ANOTHER LOOK AT THE CALL ON THE FIELD:
R
OE, CHIEF JUSTICE ROBERTS, AND STARE DECISIS
Thomas J. Molony .................................................................... 733
NOTE
D
EATH QUALIFICATION AND THE RIGHT TO TRIAL BY JURY:
A
N ORIGINALIST ASSESSMENT
Douglas Colby ......................................................................... 815
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PREFACE
COVID-19 has created a pandemic unprecedented in modern
times. Schools, businesses, restaurants, and even churches have
closed their doors to limit the spread of the virus. Many of life’s
most cherished events, including weddings, graduations, births,
baptisms, and, perhaps most tragically, funerals, have been
postponed, conducted virtually, or limited to only immediate
family members. It is times like these that can bring us together
as a nation in thought, prayer, word, and action. And there are
many accounts of such unity and mutual encouragement.
However, the pandemic has also highlighted the divisive parti-
san rhetoric that unfortunately characterizes this country—a
divisiveness that threatens, among other things, our constitu-
tional structure and the liberty it guards.
In this Issue of the Harvard Journal of Law & Public Policy, we
have the honor of publishing two Essays based on speeches
addressing constitutional concerns related to partisanship in
this country. In one, Judge Thomas Griffith of the U.S. Court of
Appeals for the D.C. Circuit laments the loss of civic charity—
the “spirit of amity” and “mutual deference” as George
Washington put it—that helped forge the Constitution and is
required to maintain it. In another, Attorney General of the
United States William Barr—in the Nineteenth Annual Barbara
K. Olson Memorial Lecture at the Federalist Society’s 2019
National Lawyers Convention—condemns partisan attacks on the
executive power that the Framers enshrined in the Constitution,
particularly those directed against President Donald Trump’s
Administration. He warns, “In this partisan age, we should
take special care not to allow the passions of the moment to
cause us to permanently disfigure the genius of our constitu-
tional structure.” Special thanks are due the editors from other
law schools who volunteered to stay on for yet another issue to
prepare Attorney General Barr’s speech for publication. We
could not have published it without their outstanding work.
We are delighted to follow these Essays with two excellent
Articles on current legal issues. The first Article, by Louis
Capozzi, is a fifty-state survey of the right to appointed counsel
in misdemeanor cases and shows that many states have pro-
Preface ii
vided a broader right to counsel than that required by the Sixth
Amendment of the U.S. Constitution. Capozzi provides a di-
verse array of approaches to misdemeanor justice that states
may consider instead of a one-size-fits-all approach. In the sec-
ond Article, Professor Thomas Molony traces the history of
opinions written or joined by Chief Justice Roberts in cases in-
volving stare decisis with an eye to how the Chief Justice might
rule in a case challenging Roe v. Wade. He concludes that the
Chief Justice’s devotion to judicial restraint and the rule of law
would lead him to vote in favor of overruling Roe only if a chal-
lenged abortion regulation cannot be upheld on narrower
grounds and if reaffirming Roe would cause more harm to the
Constitution than casting the abortion question out of federal
courts and back to the States.
Finally, we have the pleasure of publishing one of our own
in this Issue. In another piece on the Sixth Amendment, Douglas
Colby argues that death qualification—the process of removing
potential jurors who are unwilling to impose the death penalty—
does not violate an originalist understanding of the the Sixth
Amendment right to an impartial jury.
I end this preface of my last Issue on a more personal note. It
has been a true honor to serve as Editor-in-Chief of this excep-
tional journal. The Journal has been my home since my first
year of law school. As Editor-in-Chief, I have seen all of the
hard work and dedication that editors put into this journal at
every stage. More than that, I have the privilege of calling each
and every member of this journal not only a classmate and col-
league, but a friend. It is bittersweet to be graduating and leav-
ing behind my work on the Journal, but I am confident the next
masthead will continue its legacy of excellence, and I look for-
ward to seeing the bright futures of all of its members unfold.
Nicole M. Baade
Editor-in-Chief
THE FEDERALIST SOCIETY
presents
The Nineteenth Annual Barbara K. Olson Memorial Lecture
Featuring Attorney General William P. Barr
The Role of the Executive
November 15, 2019
The staff acknowledges the assistance of the following members of the
Federalist Society in preparing this speech for publication:
National Editor
Hugh Danilack
Harvard Law School
Executive Editors
Michael R. Wajda
Duke University School of Law
Timothy J. Whittle
University of Virginia School of Law
General Editors
Cameron L. Atkinson
Quinnipiac Univeristy School of Law
Sarah Christensen
George Mason University
Antonin Scalia Law School
Mary Colleen Fowler
University of Kansas School of Law
Stacy Hanson
University of Illinois College of Law
Kelly L. Krause
Marquette University Law School
Abbey Lee
University of Kansas School of Law
Cody Ray Milner
George Mason University
Antonin Scalia Law School
Ashle Page
University of North Carolina Law School
Steven M. Petrillo II
Rutgers Law School—Camden
Cynthia M. Tannar
Georgetown University Law Center
Nicholas J. Walter
Arizona State University
Sandra Day O’Connor College of Law
THE ROLE OF THE EXECUTIVE
WILLIAM P. BARR
*
Good Evening. Thank you all for being here. And thank you
to Gene Meyer for your kind introduction.
It is an honor to be here this evening delivering the Nineteenth
Annual Barbara K. Olson Memorial Lecture. I had the privilege
of knowing Barbara and had deep affection for her. I miss her
brilliance and ebullient spirit. It is a privilege for me to partici-
pate in this series, which honors her.
The theme for this year’s Annual Convention is “Originalism,”
which is a fitting choice—though, dare I say, a somewhat “uno-
riginal” one for the Federalist Society. I say that because the
Federalist Society has played an historic role in taking original-
ism “mainstream.”
1
While other organizations have contributed
to the cause, the Federalist Society has been in the vanguard.
A watershed for the cause was the decision of the American
people to send Ronald Reagan to the White House, accompa-
nied by his close advisor Ed Meese and a cadre of others who
were firmly committed to an originalist approach to the law.
2
I
was honored to work with Ed in the Reagan White House and
be there several weeks ago when President Trump presented
him with the Presidential Medal of Freedom. As the President
aptly noted, over the course of his career, Ed Meese has been
* Attorney General of the United States. This Essay is a lightly edited version of
Attorney General Barr’s remarks at the Nineteenth Annual Barbara K. Olson
Memorial Lecture on November 15, 2019, at the Federalist Society’s 2019 National
Lawyers Convention.
1.See John O. McGinnis, An Opinionated History of the Federalist Society, 7 G
EO.
J.L. & PUB. POL’Y 403, 406–07, 411 (2009); Michael Kruse, The Weekend at Yale That
Changed American Politics, POLITICO MAG. (Sept./Oct. 2018), https://www.politico.com/
magazine/story/2018/08/27/federalist-society-yale-history-conservative-law-court-
219608 [https://perma.cc/J7TW-HRLE].
2. Kruse, supra note 1.
606 Harvard Journal of Law & Public Policy [Vol. 43
among the nation’s “most eloquent champions for following
the Constitution as written.”
3
I am also proud to serve as the Attorney General under
President Trump, who has taken up that torch in his judicial
appointments. That is true of his two outstanding appoint-
ments to the Supreme Court, Justices Neil Gorsuch and Brett
Kavanaugh; of the many superb court of appeals and district
court judges he has appointed, many of whom are here this
week; and of the many outstanding judicial nominees to come,
many of whom are also here this week.
*
* * * *
I wanted to choose a topic for this afternoon’s lecture that
had an originalist angle. It will likely come as little surprise to
this group that I have chosen to speak about the Constitution’s
approach to executive power.
I deeply admire the American presidency as a political and
constitutional institution. I believe it is one of the great and re-
markable innovations in our Constitution, and it has been one
of the most successful features of the Constitution in protecting
the liberties of the American people. More than any other
branch, it has fulfilled the expectations of the Framers.
Unfortunately, over the past several decades, we have seen
steady encroachment on presidential authority by the other
branches of government.
4
This process, I think, has substantially
weakened the functioning of the executive branch, to the det-
riment of the nation. This evening, I would like to expand a bit
on these themes.
I. T
HE FRAMERS’ VIEW OF THE EXECUTIVE
First, let me say a little about what the Framers had in mind
in establishing an independent executive in Article II of the
Constitution.
3. Donald J. Trump, President, United States, Remarks by President Trump at
Presentation of the Medal of Freedom To Edwin Meese (Oct. 8, 2019), https://
www.whitehouse.gov/briefings-statements/remarks-president-trump-presentation-
medal-freedom-edwin-meese/ [https://perma.cc/CHW8-QXBH].
4. See, e.g., Common Legislative Encroachments On Executive Branch Authority,
13 Op. O.L.C. 248 (1989).
No. 3] The Role of the Executive 607
The grammar school civics class version of our Revolution is
that it was a rebellion against monarchial tyranny and that, in
framing our Constitution, one of the main preoccupations of
the Founders was to keep the executive branch weak.
5
This is
misguided. By the time of the Glorious Revolution of 1689,
monarchical power was effectively neutered and had begun its
steady decline.
6
Parliamentary power was well on its way to
supremacy and was effectively in the driver’s seat. By the time
of the American Revolution, the patriots well understood that
their prime antagonist was an overweening Parliament.
7
In-
deed, British thinkers came to conceive of Parliament, rather
than the people, as the seat of sovereignty.
8
During the Revolutionary era, American thinkers who con-
sidered inaugurating a republican form of government tended
to think of the executive component as essentially an errand
boy of a supreme legislative branch. Often the executive (some-
times constituted as a multimember council) was conceived as
a creature of the legislature, dependent on and subservient to
that body, whose sole function was carrying out the legislative
will.
9
Under the Articles of Confederation, for example, there
was no executive separate from Congress.
10
Things changed by the Constitutional Convention of 1787. To
my mind, the real “miracle” in Philadelphia that summer was
the creation of a strong executive, independent of, and coequal
with, the other two branches of government.
5. Cf. Erin Peterson, Presidential Power Surges, HARV. L. TODAY (July 17, 2019),
https://today.law.harvard.edu/feature/presidential-power-surges/ [https://perma.cc/
33DU-QFMJ] (“’The starting point was that we’d gone through a revolution
against monarchial power,’ [Professor Mark Tushnet] says. ‘Nobody wanted the
chief executive to have the kinds of power the British monarch had.’”).
6. See Louis Henkin, Revolutions and Constitutions, 49 L
A. L. REV. 1023, 1027 (1989).
7. Id. (“The experience of the American colonies under British rule persuaded
them that they needed protection for rights against the legislature as well as
against the executive.”).
8. See, e.g., J
EREMY BENTHAM, A FRAGMENT ON GOVERNMENT 72 (J.H. Burns,
H.L.A. Hart & Ross Harrison eds., Cambridge Univ. Press 1981) (1776).
9. Robert N. Clinton, A Brief History of the Adoption of the United States Constitution,
75 I
OWA L. REV. 891, 895 (1990) (describing how Congress set up committees and
civil offices to serve in an executive capacity under Congress’s direction).
10. Id. at 892–93 (“Fundamentally, the Articles of Confederation created a gov-
ernment with a single branch of government—a Congress with members appointed
by and representing the state legislatures.”).
608 Harvard Journal of Law & Public Policy [Vol. 43
The consensus for a strong, independent executive arose
from the Framers’ experience in the Revolution and under the
Articles of Confederation.
11
They had seen that the war had al-
most been lost and was a bumbling enterprise because of the
lack of strong executive leadership.
12
Under the Articles of
Confederation, they had been mortified at the inability of the
United States to protect itself against foreign impositions or to
be taken seriously on the international stage.
13
They had also
seen that, after the Revolution, too many States had adopted
constitutions with weak executives overly subordinate to the
legislatures.
14
Where this had been the case, state governments
had proven incompetent and indeed tyrannical.
15
From these practical experiences, the Framers had come to
appreciate that, to be successful, republican government re-
quired the capacity to act with energy, consistency, and deci-
siveness.
16
They had come to agree that those attributes could
best be provided by making the executive power independent
of the divided counsels of the legislative branch and vesting the
executive power in the hands of a solitary individual, regularly
elected for a limited term by the nation as a whole.
17
As Jefferson
put it, “[F]or the prompt, clear, and consistent action so neces-
sary in an Executive, unity of person is necessary . . . .”
18
While there may have been some differences among the
Framers as to the precise scope of executive power in particular
areas, there was general agreement about its nature. Just as the
great separation-of-powers theorists—Polybius, Montesquieu,
Locke—had, the Framers thought of executive power as a dis-
11. Charles J. Cooper & Leonard A. Leo, Executive Power Over Foreign and Mili-
tary Policy: Some Remarks on the Founders’ Perspective, 16 O
KLA. CITY UNIV. L. REV.
265, 268–69 (1991).
12. Id.
13. Cooper & Leo, supra note 11, at 269–70; Bruce Stein, The Framers’ Intent and
the Early Years of the Republic, 11 H
OFSTRA L. REV. 413, 418–19 (1982).
14. T
HE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed.,
2003); Cooper & Leo, supra note 11, at 267–68.
15. T
HE FEDERALIST NO. 70, supra note 14, at 423 (Alexander Hamilton).
16. See, e.g., id. at 421–22.
17. See, e.g., id.
18. See Letter from Thomas Jefferson to John Adams (Feb. 28, 1796), in 28 T
HE
PAPERS OF THOMAS JEFFERSON 618, 618–19 (John Catanzariti et al. eds., 2000).
No. 3] The Role of the Executive 609
tinct species of power.
19
To be sure, executive power includes
the responsibility for carrying into effect the laws passed by the
legislature—that is, applying the general rules to a particular
situation.
20
But the Framers understood that executive power
meant more than this.
It also entailed the power to handle essential sovereign func-
tions—such as the conduct of foreign relations and the prosecu-
tion of war—which by their very nature cannot be directed by
a preexisting legal regime but rather demand speed, secrecy,
unity of purpose, and prudent judgment to meet contingent
circumstances.
21
They agreed that—due to the very nature of
the activities involved, and the kind of decisionmaking they
require—the Constitution generally vested authority over these
spheres in the Executive.
22
For example, Jefferson, our first
Secretary of State, described the conduct of foreign relations as
“executive altogether,” subject only to the explicit exceptions
defined in the Constitution, such as the Senate’s power to ratify
treaties.
23
A related and third aspect of executive power is the power to
address exigent circumstances that demand quick action to
protect the well-being of the nation but on which the law is
either silent or inadequate—such as dealing with a plague or
natural disaster. This residual power to meet contingency is
essentially the federative power discussed by Locke in his Second
Treatise.
24
And, finally, there are the Executive’s powers of internal
management. These are the powers necessary for the President
to superintend and control the executive function, including
the powers necessary to protect the independence of the execu-
tive branch and the confidentiality of its internal deliberations.
Some of these powers are express in the Constitution, such as
19. See ERIC NELSON, THE ROYALIST REVOLUTION: MONARCHY AND THE AMERICAN
FOUNDING 15, 17, 184–228 (2014).
20. See id. at 195.
21. See id. at 221–24.
22. See id.
23. 5 T
HOMAS JEFFERSON, Opinion on the Powers of the Senate, in THE WRITINGS OF
THOMAS JEFFERSON 161, 161 (Paul Leicester Ford ed., New York, G.P. Putnam’s
Sons 1895).
24. J
OHN LOCKE, SECOND TREATISE OF GOVERNMENT 77, § 147 (Richard H. Cox
ed., Harlan Davidson, Inc. 1982) (1690).
610 Harvard Journal of Law & Public Policy [Vol. 43
the appointment power,
25
and others are implicit, such as the
removal power.
26
One of the more amusing aspects of modern progressive
polemic is their breathless attacks on the “unitary executive
theory.”
27
They portray this as some new-fangled “theory” to
justify executive power of sweeping scope. In reality, the idea
of the unitary executive does not go so much to the breadth of
presidential power. Rather, the idea is that, whatever the ex-
ecutive powers may be, they must be exercised under the
President’s supervision.
28
This is not “new,” and it is not a
“theory.” It is a description of what the Framers unquestiona-
bly did in Article II of the Constitution.
29
After you decide to establish an executive function inde-
pendent of the legislature, naturally the next question is who
will perform that function? The Framers had two potential
models. They could insinuate “checks and balances” into the
executive branch itself by conferring executive power on mul-
tiple individuals (a council) thus dividing the power.
30
Alterna-
tively, they could vest executive power in a solitary individual.
31
The Framers quite explicitly chose the latter model because
they believed that vesting executive authority in one person
would imbue the presidency with precisely the attributes nec-
essary for energetic government.
32
Even Jefferson—usually
25. U.S. CONST. art. II, § 2, cl. 2–3.
26. Myers v. United States, 272 U.S. 52, 119, 125 (1926).
27. See, e.g., Chris Edelson, Exploring the Limits of Presidential Power, ACS:
EXPERT
F. (Dec. 2, 2013), https://www.acslaw.org/expertforum/exploring-the-limits-of-
presidential-power [https://perma.cc/6TTD-46RR] (stating that critics describe the
unitary executive theory as placing the President above the law).
28. See S
TEVEN G. CALABRESI & CHRISTOPHER S. YOO, THE UNITARY EXECUTIVE:
PRESIDENTIAL POWER FROM WASHINGTON TO BUSH 3–4 (2008).
29. See id. (“[T]he theory of the unitary executive holds that the Vesting Clause
of Article II, which provides that ‘the executive Power shall be vested in a President
of the United States of America,’ is a grant to the president of all the executive
power, which includes the powers to remove and direct all lower-level executive
officials.”).
30. See R
ICHARD J. ELLIS, FOUNDING THE AMERICAN PRESIDENCY 31–43 (1999)
(discussing the early debate over having one President or multiple).
31. See T
HE FEDERALIST NO. 70, supra note 14 (Alexander Hamilton) (commenting
on how a unitary executive is more favorable than a plurality in the executive).
32. Id. at 421 (“Energy in the executive is a leading character in the definition of
good government. . . . [Politicians and statesmen] have, with great propriety, con-
No. 3] The Role of the Executive 611
seen as less of a hawk than Hamilton on executive power
33
—
was insistent that executive power be placed in single hands,
and he cited America’s unitary executive as a signal feature
that distinguished America’s success from France’s failed re-
publican experiment.
34
The implications of the Framers’ decision are obvious. If
Congress attempts to vest the power to execute the law in
someone beyond the control of the President, it contravenes the
Framers’ clear intent to vest that power in a single person, the
President.
35
So much for this supposedly nefarious theory of
the unitary executive.
II. E
NCROACHMENTS ON THE EXECUTIVE BRANCH TODAY
We all understand that the Framers expected that the three
branches would be jostling and jousting with each other, as
each threatened to encroach on the prerogatives of the others.
36
They thought this was not only natural, but salutary, and they
provisioned each branch with the wherewithal to fight and to
defend itself in these interbranch struggles for power.
37
So let me turn now to how the Executive is presently faring
in these interbranch battles. I am concerned that the deck has
become stacked against the Executive. Since the mid-60s, there
sidered energy as the most necessary quality of [a single executive], and have
regarded this as most applicable to power in a single hand . . . .”).
33. See John Yoo, Jefferson and Executive Power, 88 B.U. L. R
EV. 421, 422–23 (2008).
34. See Letter from Thomas Jefferson to Destutt de Tracy (Jan. 26, 1811), in 3 T
HE
PAPERS OF THOMAS JEFFERSON, RETIREMENT SERIES 334, 335–36 (J. Jefferson Looney
et al. eds., 2006).
35. C
ALABRESI & YOO, supra note 28, at 34–35; see also 1 ANNALS OF CONG. 463
(1789) (Joseph Gales ed., 1834) (“If the Constitution has invested all Executive
power in the President, I venture to assert that the Legislature has no right to di-
minish or modify his Executive authority.”).
36. See Constitutional Amendment to Restore Legislative Veto: Hearing on S.J. Res.
135 Before the S. Subcomm. on the Constitution of the S. Comm. on the Judiciary, 98th
Cong. 63 (1984) (statement of Peter L. Strauss, Professor, Columbia Law School)
(“The framers expected the branches to battle each other to acquire and defend
power.”).
37. See T
HE FEDERALIST NO. 51, supra note 14, at 318–19 (James Madison) (“But
the great security against a gradual concentration of the several powers in the
same department consists in giving to those who administer each department the
necessary constitutional means and personal motives to resist encroachments of
the others.”).
612 Harvard Journal of Law & Public Policy [Vol. 43
has been a steady grinding down of the executive branch’s au-
thority that accelerated after Watergate.
38
More and more, the
President’s ability to act in areas in which he has discretion has
become smothered by the encroachments of the other branches.
39
When these disputes arise, I think there are two aspects of
contemporary thought that tend to operate to the disadvantage
of the Executive. The first is the notion that politics in a free re-
public is all about the legislative and judicial branches protect-
ing liberty by imposing restrictions on the Executive.
40
The
premise is that the greatest danger of government becoming
oppressive arises from the prospect of executive excess. So,
there is a knee-jerk tendency to see the legislative and judicial
branches as the good guys protecting society from a rapacious
would-be autocrat.
This prejudice is wrongheaded and atavistic. It comes out of
the early English Whig view of politics and English constitu-
tional experience, where political evolution was precisely
that.
41
You started out with a king who holds all the cards; he
holds all the power, including legislative and judicial. Political
evolution involved a process by which the legislative power
gradually, over hundreds of years, reigned in the king, and ex-
tracted and established its own powers, as well as those of the
38. See, e.g., ANDREW RUDALEVIGE, THE NEW IMPERIAL PRESIDENCY: RENEWING
PRESIDENTIAL POWER AFTER WATERGATE 101, 107 (2005) (noting in 1974 Congress
substantially broadened the Freedom of Information Act to allow for judicial re-
view of executive determinations that something needed to be kept secret, even
for national security materials).
39. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 492–508 (2010) (holding that the dual for-cause removal limitations under the
Sarbanes-Oxley Act of 2002 for members of the Public Company Accounting
Oversight Board constrained presidential power in violation of the constitutional
separation of powers); Morrison v. Olson, 487 U.S. 654, 703–15 (1988) (Scalia, J.,
dissenting) (arguing that the independent counsel provisions of the Ethics in
Government Act of 1978, which the majority upheld, constrained presidential
power in violation of the separation of powers); Common Legislative Encroach-
ments On Executive Branch Authority, 13 Op. O.L.C. 248 (1989).
40. See Julian Davis Mortenson, Article II Vests the Executive Power, not the Royal
Prerogative, 119 C
OLUM. L. REV. 1169, 1210–19 (2019); Tara L. Branum, President or
King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J.
LEGIS. 1,
17–21 (2002).
41. See Mortenson, supra note 40, at 1191–1201.
No. 3] The Role of the Executive 613
judiciary.
42
A watershed in this evolution was, of course, the
Glorious Revolution in 1689.
43
But by 1787, we had the exact opposite model in the United
States.
44
The Founders greatly admired how the British consti-
tution had given rise to the principles of a balanced govern-
ment.
45
But they felt that the British constitution had achieved
only an imperfect form of this model. They saw themselves as
framing a more perfect version of separation of powers and a
balanced constitution.
46
Part of their more perfect construction was a new kind of ex-
ecutive. They created an office that was already the ideal Whig
executive. It already had built into it the limitations that Whig
doctrine aspired to.
47
It did not have the power to tax and
spend;
48
it was constrained by habeas corpus and by due pro-
cess in enforcing the law against members of the body politic;
49
it was elected for a limited term of office;
50
and it was elected
by the nation as whole.
51
That is a remarkable democratic insti-
tution—the only figure elected by the nation as a whole. With
the creation of the American presidency, the Whig’s obsessive
focus on the dangers of monarchical rule lost relevance.
This fundamental shift in view was reflected in the Convention
debates over the new frame of government. Their concerns
were very different from those that weighed on seventeenth-
century English Whigs. It was not executive power that was of
so much concern to them; it was danger of the legislative
branch, which they viewed as the most dangerous branch to
liberty.
52
As Madison warned, “The legislative department is
42. Id.
43. Id. at 1196–99.
44. A
RTICLES OF CONFEDERATION of 1781 (lacking a single executive and vesting
all executive and legislative power in a congress).
45. Martin S. Flaherty, The Most Dangerous Branch, 105 Y
ALE L.J. 1725, 1756–58 (1996).
46. Victoria Nourse, Toward a “Due Foundation” for the Separation of Powers: The
Federalist Papers as Political Narrative, 74 T
EX. L. REV. 447, 474–76 (1996).
47. See Flaherty, supra note 45, at 1761–62.
48. U.S.
CONST. art. I, § 8, cl. 1.
49. U.S.
CONST. art. I, § 9, cl. 2; id. amend. V.
50. U.S.
CONST. art. II, § 1.
51. Id.
52. See, e.g., 1 T
HE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 71, 144,
386–88
(Max Farrand ed., 1911).
614 Harvard Journal of Law & Public Policy [Vol. 43
everywhere extending the sphere of its activity and drawing all
power into its impetuous vortex.”
53
And indeed, they viewed
the presidency as a check on the legislative branch.
54
The second contemporary way of thinking that operates
against the Executive is a notion that the Constitution does not
sharply allocate powers among the three branches, but rather
that the branches—especially the political branches—“share”
powers.
55
The idea at work here is that, because two branches
both have a role to play in a particular area, we should see
them as sharing power in that area and that it is not such a big
deal if one branch expands its role within that sphere at the ex-
pense of the other.
56
This mushy thinking obscures what it means to say that
powers are shared under the Constitution. The Constitution
generally assigns broad powers to each of the branches in
defined areas.
57
Thus, the legislative power granted in the
53. THE FEDERALIST NO. 48, supra note 14, at 306 (James Madison).
54. See, e.g., T
HE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 52,
at 144; T
HE FEDERALIST NO. 73, supra note 14, at 441 (Alexander Hamilton) (de-
fending the Executive’s veto power as necessary to “establish[] a salutary check
upon the legislative body, calculated to guard the community against the effects
of faction, precipitancy, or of any impulse unfriendly to the public good”).
55. See, e.g., R
ICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN
PRESIDENTS: THE POLITICS OF LEADERSHIP FROM ROOSEVELT TO REAGAN 29 (The
Free Press 1991) (1960) (presenting the view that the United States is not “a gov-
ernment of ‘separated powers’” but “a government of separated institutions shar-
ing powers”); Lloyd N. Cutler, Now Is the Time for All Good Men . . ., 30 W
M. &
MARY L. REV. 387, 387 (1989) (“[The Framers] decided the best way to maintain
checks and balances among the branches was to allow at least one other branch to
share in each power principally assigned to a different branch.”); Paul R. Verkuil,
Separation of Powers, the Rule of Law and the Idea of Independence, 30 W
M. & MARY L.
REV. 301, 301 (1989); see also THE FEDERALIST NO. 37, supra note 14, at 224 (James
Madison) (“[N]o skill in the science of government has yet been able to discrimi-
nate and define, with sufficient certainty, its three great provinces—the legislative,
executive, and judiciary . . . .”).
56. See Flaherty, supra note 45, at 1737 (“To [the functionalist], the Constitution . . .
invites[] the legislature, the executive, and the judiciary to share power in creative
ways. So long as the arrangements that emerge do not upset the specified design
at the top of the structure . . . what emerges is fair game.”).
57. See T
HE FEDERALIST NO. 48 (James Madison); Edward Susolik, Note, Separa-
tion of Powers and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of
Law, 63 S.
CAL. L. REV. 1515, 1528 (1990) (noting that for a “strict separation of
powers . . . [l]egislative, executive, and judicial functions are conceptualized as
separate and distinct, and actors within each branch are not to undertake duties
allocated to another branch”).
No. 3] The Role of the Executive 615
Constitution is granted to the Congress.
58
At the same time, the
Constitution gives the Executive a specific power in the legisla-
tive realm—the veto power.
59
Thus, the Executive “shares” leg-
islative power only to the extent of this specific grant of veto
power. The Executive does not get to interfere with the broader
legislative power assigned solely to the Congress.
60
In recent years, both the legislative and judicial branches
have been responsible for encroaching on the presidency’s
constitutional authority. Let me first say something about the
legislature.
A. Encroachments by the Legslative Branch
As I have said, the Framers fully expected intense pulling
and hauling between the Congress and the President. Unfortu-
nately, just in the past few years, we have seen these conflicts
take on an entirely new character.
Immediately after President Trump won election, opponents
inaugurated what they called “The Resistance,” and they rallied
around an explicit strategy of using every tool and maneuver
available to sabotage the functioning of his administration.
61
Now “resistance” is the language used to describe an insurgency
against rule imposed by an occupying military power. The
term obviously connotes that the government opposed is not
legitimate.
62
This is a very dangerous—indeed, incendiary—
58. See U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall be
vested in a Congress of the United States . . . .”).
59. See U.S. C
ONST. art. I, § 7, cl. 2.
60. See Springer v. Philippine Islands, 277 U.S. 189, 201–02 (1928) (discussing the
“generally inviolate” rule that “the executive cannot exercise either legislative or
judicial power”).
61. See David S. Meyer & Sidney Tarrow, Introduction to
THE RESISTANCE: THE
DAWN OF THE ANTI-TRUMP OPPOSITION MOVEMENT 1, 1–24 (David S. Meyer &
Sidney Tarrow eds., 2018)
(describing how a variety of social activism movements
combined to create the origins of “The Resistance”); Charlotte Alter, How the Anti-
Trump Resistance Is Organizing Its Outrage, T
IME (Oct. 18, 2018, 6:35 AM), http://
time.com/longform/democrat-midterm-strategy/ [http://perma.cc/CDD9-HBZB];
Alex Seitz-Wald, The anti-Trump ‘Resistance’ turns a year old—and grows up, NBC
N
EWS (Jan. 19, 2018, 8:53 AM), http://www.nbcnews.com/storyline/2018-state-of-
the-union-address/anti-trump-resistance-turns-year-old-grows-n838821 [http://
perma.cc/CPY2-4EZS].
62. See Tom Ginsburg, Daniel Lansberg-Rodriguez, Mila Versteeg, When to
Overthrow your Government: The Right to Resist in the World’s Constitutions, 60
UCLA
L. REV. 1184, 1208 (2013) (describing the “right to resist” as a “necessary
616 Harvard Journal of Law & Public Policy [Vol. 43
notion to import into the politics of a democratic republic.
63
What it means is that, instead of viewing themselves as the
“loyal opposition,” as opposing parties have done in the past,
64
they essentially see themselves as engaged in a war to cripple,
by any means necessary, a duly elected government.
65
A prime example of this is the Senate’s unprecedented abuse
of the advice-and-consent process.
66
The Senate is free to exer-
cise that power to reject unqualified nominees, but that power
was never intended to allow the Senate to systematically oppose
and draw out the approval process for every appointee so as to
prevent the President from building a functional government.
67
Yet that is precisely what the Senate minority has done from
his very first days in office. As of September of this year, the
popular response in cases of illegitimately exercised or formulated government
authority”).
63. See Arthur Kaufmann, Small Scale Right to Resist, 21 N
EW ENG. L. REV. 571,
574 (1985–1986) (“The tragedy of resistance [is] not only its futility but also its
danger to the order of the community . . . .”); Edward Rubin, Judicial Review and
the Right To Resist, 97 G
EO. L.J. 61, 63 (2008) (“Resistance . . . is always traumatic,
typically dangerous, and often ineffective; and unsuccessful efforts generally lead
to disastrous consequences for the participants.”).
64. See George Anastaplo, Loyal Opposition in a Modern Democracy, 35 L
OY. U.
CHI. L.J. 1009, 1010 (2004) (describing the role of the “loyal opposition” as a foil
against presidency policies, used by a competing, yet cooperating, political party);
see also Jean H. Baker, A Loyal Opposition: Northern Democrats in the Thirty-Seventh
Congress, 25 C
IVIL WAR HIST. 139 (1979) (noting that even during the Civil War,
Democrats from northern states played the role of “loyal opposition” against the
Lincoln Administration).
65. Joel Kotkin, Loyal opposition versus resistance to trump, O
RANGE COUNTY REG.
(Jan. 8, 2017, 12:00 AM), http://www.ocregister.com/2017/01/08/loyal-opposition-
versus-resistance-to-trump/ [http://perma.cc/5VBF-PAN7]; Campbell Robertson,
In Trump Country, the Resistance Meets the Steel Curtain, N.Y.
TIMES (Feb. 6, 2020),
https://nyti.ms/2UqYF9n [https://perma.cc/6DQU-PHJA].
66. Compare Nominations: A Historical Overview, U.S.
SENATE, https://
www.senate.gov/artandhistory/history/common/briefing/Nominations.htm [https://
perma.cc/E9DU-U79H] (last visited May 3, 2020) and The Confirmation Process for
Presidential Appointees, H
ERITAGE FOUND., https://www.heritage.org/political-
process/heritage-explains/the-confirmation-process-presidential-appointees [https://
perma.cc/842A-RS35] (last visited May 3, 2020) (three rejections of Supreme Court
nominations and nine rejections of cabinet appointments in the past hundred
years) with Dan Cancian, Donald Trump Suffers Setback as Senate Rejects Hundreds of
Nominations, N
EWSWEEK (Jan. 5, 2019, 10:43 AM), https://www.newsweek.com/
donald-trump-judicial-nominations-116th-congress-us-senate-charles-schumer-
1280392 [https://perma.cc/7PUM-DHUD] (hundreds of nominees rejected and
increased timeframe for decisions during the Trump Administration).
67. See T
HE FEDERALIST NO. 76, supra note 14, at 455–57 (Alexander Hamilton).
No. 3] The Role of the Executive 617
Senate had been forced to invoke cloture on 236 Trump nomi-
nees
68
—each of those representing its own massive consump-
tion of legislative time meant only to delay an inevitable con-
firmation. How many times was cloture invoked on nominees
during President Obama’s first term? Seventeen times.
69
The
second President Bush’s first term? Four times.
70
It is reasonable
to wonder whether a future President will actually be able to
form a functioning administration if his or her party does not
hold the Senate.
Congress has in recent years also largely abdicated its core
function of legislating on the most pressing issues facing the
national government.
71
They either decline to legislate on major
questions or, if they do, punt the most difficult and critical issues
by making broad delegations to a modern administrative state
that they increasingly seek to insulate from presidential con-
trol.
72
This phenomenon first arose in the wake of the Great
Depression, as Congress created a number of so-called “inde-
pendent agencies” and housed them, at least nominally, in the
executive branch.
73
More recently, the Dodd-Frank Act’s crea-
68. See Cloture Motions—115th Congress, U.S. SENATE, https://www.senate.gov/
legislative/cloture/115.htm [https://perma.cc/29BP-CAYD] (last visited May 3, 2020);
Cloture Motions—116th Congress, U.S.
SENATE, https://www.senate.gov/legislative/
cloture/116.htm [https://perma.cc/4MGP-EHRL] (last visited May 3, 2020).
69. See Cloture Motions—111th Congress, U.S.
SENATE, https://www.senate.gov/
legislative/cloture/111.htm [https://perma.cc/6KT5-Y33Q] (last visited May 5, 2020);
Cloture Motions—112th Congress, U.S.
SENATE, https://www.senate.gov/legislative/
cloture/112.htm [https://perma.cc/X5SM-PSAK] (last visited May 5, 2020).
70. See Cloture Motions—107th Congress, U.S.
SENATE, https://www.senate.gov/
legislative/cloture/107.htm [https://perma.cc/QX6C-ZWVH] (last visited May 5, 2020);
Cloture Motions—108th Congress, U.S.
SENATE, https://www.senate.gov/legislative/
cloture/108.htm [https://perma.cc/26AE-ZSBN] (last visited May 5, 2020).
71. See David Schoenbrod, Consent of the Governed: A Constitutional Norm that the
Court Should Substantially Enforce, 43
HARV. J.L. & PUB. POL’Y 213, 244–53 (2020);
Ethan Blevins, Ending the Administrative State is an Uphill and Necessary Battle for a
Free Nation, N
AT’L REV. (Feb. 20, 2020, 5:50 PM), https://www.nationalreview.com/
bench-memos/ending-administrative-state-uphill-necessary-battle-free-nation/
[https://perma.cc/C9PB-7JY5].
72. Schoenbrod, supra note 71, at 244–53; Blevins, supra note 71; Chuck DeVore, The
Administrative State Is Under Assault And That’s A Good Thing, F
ORBES (Nov. 27, 2017,
1:53 PM), https://www.forbes.com/sites/chuckdevore/2017/11/27/the-administrative-
state-is-under-assault-and-thats-a-good-thing/#60c12ddc393c [https://perma.cc/
D825-TAUW].
73. John Yoo, Franklin Roosevelt and Presidential Power, 21 C
HAP. L. REV. 205, 227–
31 (2018).
618 Harvard Journal of Law & Public Policy [Vol. 43
tion of the Consumer Financial Protection Branch, a single-
headed independent agency that functions like a junior varsity
President for economic regulation, is just one of many examples.
74
Of course, Congress’s effective withdrawal from the business
of legislating leaves it with a lot of time for other pursuits. And
the pursuit of choice, particularly for the opposition party, has
been to drown the executive branch with “oversight” demands
for testimony and documents.
75
I do not deny that Congress
has some implied authority to conduct oversight as an incident
to its legislative power. But the sheer volume of what we see
today—the pursuit of scores of parallel “investigations”
through an avalanche of subpoenas—is plainly designed to in-
capacitate the executive branch, and indeed is touted as such.
76
The costs of this constant harassment are real. For example,
we all understand that confidential communications and a pri-
vate, internal deliberative process are essential for all of our
branches of government to properly function. Congress and the
judiciary know this well, as both have taken great pains to
shield their own internal communications from public inspec-
tion.
77
There is no FOIA
78
for Congress or the courts. Yet Congress
has happily created a regime that allows the public to seek
whatever documents it wants from the executive branch at the
same time that individual congressional committees spend
their days trying to publicize the Executive’s internal decisional
74. See PHH Corp. v. CFPB, 839 F.3d 1, 15–17 (D.C. Cir. 2016), rev’d en banc, 881
F.3d 75 (D.C. Cir. 2018).
75. See, e.g., Laura Blessing, Congressional Oversight in the 116th, G
OV’T AFF. INST.
AT
GEO. U. (Mar. 8, 2019), https://gai.georgetown.edu/congressional-oversight-in-
the-116th/ [https://perma.cc/7PQ5-XJDS].
76. Alex Moe, House investigations of Trump and his administration: The full list,
NBC
NEWS (May 27, 2019, 12:02 PM), https://www.nbcnews.com/politics/donald-
trump/house-investigations-trump-his-administration-full-list-n1010131 [https://
perma.cc/SW85-2AUN] (listing fourteen different Democrat-led House commit-
tees investigating President Trump as of May 2019).
77. See, e.g., Classified Information Procedures Act, 18 U.S.C app. 3 (2018);
R
ULES OF THE HOUSE OF REPRESENTATIVES, r. XVII(10), reprinted in H.R. DOC. NO.
114-192, at 788–89 (2017) (authorizing “secret sessions”); S
TANDING RULES OF THE
SENATE, r. XXI, reprinted in S. DOC. NO. 113-18, at 15 (2013) (authorizing “closed
sessions”); Supreme Court Procedures, U.S.
COURTS, https://www.uscourts.gov/about-
federal-courts/educational-resources/about-educational-outreach/activity-resources/
supreme-1 [https://perma.cc/UJ47-WM8F] (last visited May 3, 2020) (noting that
only Justices are allowed in the room when the Supreme Court holds conference).
78. 5 U.S.C. § 552 (2018).
No. 3] The Role of the Executive 619
process.
79
That process cannot function properly if it is public,
nor is it productive to have our government devoting enor-
mous resources to squabbling about what becomes public and
when, rather than doing the work of the people.
In recent years, we have seen substantial encroachment by
Congress in the area of executive privilege. The executive
branch and the Supreme Court have long recognized that the
need for confidentiality in executive branch decisionmaking
necessarily means that some communications must remain off
limits to Congress and the public.
80
There was a time when
Congress respected this important principle as well.
81
But today,
Congress is increasingly quick to dismiss good faith attempts to
protect executive branch equities, labeling such efforts “obstruc-
tion of Congress” and holding cabinet secretaries in contempt.
82
One of the ironies of today is that those who oppose this
President constantly accuse this Administration of “shredding”
constitutional norms and waging a war on the rule of law.
83
When I ask my friends on the other side, what exactly are you
referring to? I get vacuous stares, followed by sputtering about
79. See ACLU v. CIA, 823 F.3d 655, 662 (D.C. Cir. 2016) (“Nevertheless, because
it is undisputed that Congress is not an agency, it is also undisputed that ‘congres-
sional documents are not subject to FOIA’s disclosure requirements.’”(quoting
United We Stand Am., Inc. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004))).
80. United States v. Nixon, 418 U.S. 683, 711 (1974) (“Nowhere in the Constitution . . . is
there any explicit reference to a privilege of confidentiality, yet to the extent this
interest relates to the effective discharge of a President’s powers, it is constitution-
ally based.”).
81. In re Sealed Case, 121 F.3d 729, 740 n.9 (D.C. Cir. 1997) (“Interestingly, it
appears that Congress has at times accepted executive officers’ refusal to testify
about conversations they had with the President, even as it was insisting on access
to other executive branch documents and materials.” (citing M
ARK J. ROZELL, EX-
ECUTIVE
PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC ACCOUNTABILITY
44 (1994); Robert Kramer & Herman Marcuse, Executive Privilege—A Study of the
Period 1953–1960, 29 G
EO. WASH. L. REV. 827, 872–73 (1961))).
82. See, e.g., H.R.
REP. NO. 116-125, at 1–2 (2019).
83. Tim Ahmann, Top Democrats say Trump is shredding Constitution with emer-
gency declaration, R
EUTERS (Feb. 15, 2019, 11:25 AM), https://www.reuters.com/
article/us-usa-shutdown-democrats/top-democrats-say-trump-is-shedding-constitution-
with-emergency-declaration-idUSKCN1Q423R [https://perma.cc/36UX-FE96]; see
also Neil S. Siegel, Political Norms, Constitutional Conventions, and President Donald
Trump, 93 I
ND. L.J. 177, 191–203 (2018).
620 Harvard Journal of Law & Public Policy [Vol. 43
the travel ban
84
or some such thing. While the President has
certainly thrown out the traditional Beltway playbook, he was
upfront about that beforehand, and the people voted for him.
What I am talking about today are fundamental constitutional
precepts. The fact is that this Administration’s policy initiatives
and proposed rules, including the travel ban, have transgressed
neither constitutional nor traditional norms, and have been
amply supported by the law and patiently litigated through the
court system to vindication.
85
Indeed, measures undertaken by this Administration seem a
bit tame when compared to some of the unprecedented steps
taken by the Obama Administration’s aggressive exercises of
executive power—such as, under its DACA program, refusing
to enforce broad swathes of immigration law.
86
The fact of the matter is that, in waging a scorched earth, no-
holds-barred war of “Resistance” against this Administration,
it is the Left that is engaged in the systematic shredding of
norms and the undermining of the rule of law. This highlights
a basic disadvantage that conservatives have always had in
contesting the political issues of the day. It was adverted to by
the old, curmudgeonly Federalist, Fisher Ames, in an essay
during the early years of the Republic.
87
In any age, the so-called progressives treat politics as their
religion. Their holy mission is to use the coercive power of the
state to remake man and society in their own image, according
84. See Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order No.
13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017); Proclamation No. 9645, 82 Fed. Reg.
45,161 (Sept. 24, 2017).
85. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392, 2403–04, 2423 (2018) (upholding
the travel ban).
86. See Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland
Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Protection, et
al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to
the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/assets/
s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf
[https://perma.cc/JG97-XT57]; Barack Obama, President, United States, Remarks
by the President in Address to the Nation on Immigration (Nov. 20, 2014), https://
obamawhitehouse.archives.gov/the-press-office/2014/11/20/remarks-president-
address-nation-immigration [https://perma.cc/7ADG-YUZB].
87. F
ISHER AMES, Laocoon No. II, in WORKS OF FISHER AMES 103, 106–08 (Boston,
T.B. Wait & Co. 1809).
No. 3] The Role of the Executive 621
to an abstract ideal of perfection.
88
Whatever means they use
are therefore justified because, by definition, they are a virtu-
ous people pursing a deific end. They are willing to use any
means necessary to gain momentary advantage in achieving
their end, regardless of collateral consequences and the systemic
implications. They never ask whether the actions they take
could be justified as a general rule of conduct, equally applica-
ble to all sides.
89
Conservatives, on the other hand, do not seek an earthly par-
adise. We are interested in preserving over the long run the
proper balance of freedom and order necessary for healthy de-
velopment of natural civil society and individual human flour-
ishing.
90
This means that we naturally test the propriety and
wisdom of action under a “rule of law” standard.
91
The essence
of this standard is to ask what the overall impact on society
over the long run if the action we are taking, or principle we
are applying, in a given circumstance was universalized—that
is, would it be good for society over the long haul if this was
done in all like circumstances?
92
For these reasons, conservatives tend to have more scruple
over their political tactics and rarely feel that the ends justify
the means. And this is as it should be, but there is no getting
around the fact that this puts conservatives at a disadvantage
when facing progressive holy war, especially when doing so
under the weight of a hyper-partisan media.
88. See Jim DeMint & Rachel Bovard, Opinion, Progressive politics is the Left’s
new religion, W
ASH. EXAMINER (Sept. 24, 2019, 12:00 AM), https://
www.washingtonexaminer.com/opinion/progressive-politics-is-the-lefts-new-
religion [https://perma.cc/6ZA5-G3AH].
89. See, e.g., John O. McGinnis, Progressivism Is a Long-Term Threat to the Rule of
Law, L
AW & LIBERTY (July 18, 2016), https://lawliberty.org/progressivism-is-a-
long-term-threat-to-the-rule-of-law/ [https://perma.cc/GGJ5-XCDY].
90. See Lee Edwards, What Is Conservatism?, H
ERITAGE FOUND. (Oct. 25, 2018),
https://www.heritage.org/conservatism/commentary/what-conservatism [https://
perma.cc/5E5Q-JKEM]; Russell Kirk, Ten Conservative Principles, R
USSELL KIRK CTR.,
https://kirkcenter.org/conservatism/ten-conservative-principles/ [https://perma.cc/
V5U8-BPDF] (last visited May 4, 2020).
91. Calvin R. Massey, Rule of Law and the Age of Aquarius, 41 H
ASTINGS L.J. 757,
759 (1990) (book review) (“Adherence to the rule of law is truly conservative in
that it preserves the balance between majoritarian power and individual rights or
societal values, in order to permit a systemic solution to materialize.”).
92. See Antonin Scalia, The Rule of Law as A Law of Rules, 56 U.
CHI. L. REV. 1175,
1178–80 (1989).
622 Harvard Journal of Law & Public Policy [Vol. 43
B. Encroachments by the Judicial Branch
Let me turn now to what I believe has been the prime source
of the erosion of separation-of-power principles generally, and
executive branch authority specifically. I am speaking of the
judicial branch.
In recent years the judiciary has been steadily encroaching on
executive responsibilities in a way that has substantially under-
cut the functioning of the presidency. The courts have done this
in essentially two ways: First, the judiciary has appointed itself
the ultimate arbiter of separation-of-powers disputes between
Congress and Executive, thus preempting the political process,
which the Framers conceived as the primary check on inter-
branch rivalry. Second, the judiciary has usurped presidential
authority for itself, either (a) by, under the rubric of “review,”
substituting its judgment for the Executive’s in areas commit-
ted to the President’s discretion, or (b) by assuming direct con-
trol over realms of decisionmaking that heretofore have been
considered at the core of presidential power.
The Framers did not envision that the courts would play the
role of arbiter of turf disputes between the political branches.
As Madison explained in Federalist 51, “the great security
against a gradual concentration of the several powers in the
same department, consists in giving to those who administer
each department the necessary constitutional means and per-
sonal motives to resist encroachments of the others.”
93
By giv-
ing each the Congress and the presidency the tools to fend off
the encroachments of the others, the Framers believed this
would force compromise and political accommodation.
The “constitutional means” to “resist encroachments” that
Madison described take various forms. As Justice Scalia observed,
the Constitution gives Congress and the President many “clubs
with which to beat” each other.
94
Conspicuously absent from
the list is running to the courts to resolve their disputes.
That omission makes sense. When the judiciary purports to
pronounce a conclusive resolution to constitutional disputes
between the other two branches, it does not act as a coequal.
93. THE FEDERALIST NO. 51, supra note 14, at 318–19 (James Madison).
94. Transcript of Oral Argument at 10, Zivotofsky v. Clinton, 566 U.S. 189 (2012)
(No. 10-699).
No. 3] The Role of the Executive 623
And, if the political branches believe the courts will resolve
their constitutional disputes, they have no incentive to debate
their differences through the democratic process—with input
from and accountability to the people. And they will not even
try to make the hard choices needed to forge compromise. The
long experience of our country is that the political branches can
work out their constitutional differences without resort to the
courts.
In any event, the prospect that courts can meaningfully re-
solve interbranch disputes about the meaning of the Constitution
is mostly a false promise. How is a court supposed to decide,
for example, whether Congress’s power to collect information
in pursuit of its legislative function overrides the President’s
power to receive confidential advice in pursuit of his executive
function? Nothing in the Constitution provides a manageable
standard for resolving such a question. It is thus no surprise
that the courts have produced amorphous, unpredictable bal-
ancing tests like the Court’s holding in Morrison v. Olson
95
that
Congress did not disrupt “the proper balance between the co-
ordinate branches by preventing the Executive Branch from
accomplishing its constitutionally assigned functions.”
96
Apart from their overzealous role in interbranch disputes,
the courts have increasingly engaged directly in usurping pres-
idential decisionmaking authority for themselves. One way
courts have effectively done this is by expanding both the
scope and the intensity of judicial review.
97
In recent years, we have lost sight of the fact that many criti-
cal decisions in life are not amenable to the model of judicial
decisionmaking. They cannot be reduced to tidy evidentiary
standards and specific quantums of proof in an adversarial
process. They require what we used to call prudential judg-
ment. They are decisions that frequently have to be made
promptly, on incomplete and uncertain information, and nec-
essarily involve weighing a wide range of competing risks and
making predictions about the future. Such decisions frequently
95. 487 U.S. 654 (1988).
96. Id. at 695 (alterations adopted) (quoting Nixon v. Admin. of Gen. Servs., 433
U.S. 425, 443 (1977)) (internal quotation marks omitted).
97. See, e.g., Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017), rev’d, 138 S. Ct. 2392
(2018).
624 Harvard Journal of Law & Public Policy [Vol. 43
call into play the “precautionary principle.”
98
This is the princi-
ple that when a decisionmaker is accountable for discharging a
certain obligation—such as protecting the public’s safety—it is
better, when assessing imperfect information, to be wrong and
safe, than wrong and sorry.
It was once well recognized that such matters were largely
unreviewable and that the courts should not be substituting
their judgments for the prudential judgments reached by the
accountable executive officials. This outlook now seems to have
gone by the boards. Courts are now willing, under the banner of
judicial review, to substitute their judgment for the President’s
on matters that only a few decades ago would have been un-
imaginable—such as matters involving national security or for-
eign affairs.
The travel ban case is a good example. There the President
made a decision under an explicit legislative grant of authority,
as well as his constitutional national security role, to temporarily
suspend entry to aliens coming from a half dozen countries
pending adoption of more effective vetting processes.
99
The
common denominator of the initial countries selected was that
they were unquestionable hubs of terrorism activity, which
lacked functional central government’s and responsible law
enforcement and intelligence services that could assist us in
identifying security risks among their nationals seeking entry.
100
Despite the fact there were clearly justifiable security grounds
for the measure, the district court in Hawaii and the Ninth Circuit
blocked this public safety measure for a year and half on the
theory that the President’s motive for the order was religious
bias against Muslims.
101
This was just the first of many immi-
gration measures based on good and sufficient security
grounds that the courts have second guessed since the begin-
ning of the Trump Administration.
102
98. Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV. 1003,
1003–04 (2003).
99. Trump v. Hawaii, 138 S. Ct. at 2403–05.
100. Id. at 2403–04.
101. Id. at 2404, 2406–07.
102. See, e.g., E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th Cir.), stay
granted, 140 S. Ct. 3 (2019); Sierra Club v. Trump, 929 F.3d 670 (9th Cir.), stay granted,
140 S. Ct. 1 (2019); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908
F.3d 476 (9th Cir. 2018), cert. granted, 139 S. Ct. 2779 (2019).
No. 3] The Role of the Executive 625
The travel ban case highlights an especially troubling aspect
of the recent tendency to expand judicial review. The Supreme
Court has traditionally refused, across a wide variety of con-
texts, to inquire into the subjective motivation behind govern-
mental action. To take the classic example, if a police officer has
probable cause to initiate a traffic stop, his subjective motivations
are irrelevant.
103
And just last term, the Supreme Court appro-
priately shut the door to claims that otherwise-lawful redis-
tricting can violate the Constitution if the legislators who drew
the lines were actually motivated by political partisanship.
104
What is true of police officers and gerrymanderers is equally
true of the President and senior executive officials. With very
few exceptions, neither the Constitution, nor the Administrative
Procedure Act
105
or any other relevant statute, calls for judicial
review of executive motive. They apply only to executive ac-
tion.
106
Attempts by courts to act like amateur psychiatrists at-
tempting to discern an executive official’s “real motive”—often
after ordering invasive discovery into the executive branch’s
privileged decisionmaking process—have no more foundation
in the law than a subpoena to a court to try to determine a
judge’s real motive for issuing its decision. And courts’ indul-
gence of such claims, even if they are ultimately rejected, rep-
resents a serious intrusion on the President’s constitutional
prerogatives.
The impact of these judicial intrusions on executive respon-
sibility have been hugely magnified by another judicial innova-
tion—the nationwide injunction. First used in 1963,
107
and
103. Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play
no role in ordinary, probable-cause Fourth Amendment analysis.”).
104. Rucho v. Common Cause, 139 S. Ct. 2484, 2506–07 (2019) (“[P]artisan gerry-
mandering claims present political questions beyond the reach of the federal
courts. Federal judges have no license to reallocate political power between the
two major political parties, with no plausible grant of authority in the Constitution,
and no legal standards to limit and direct their decisions.”).
105. 5 U.S.C. §§ 551, 553–559, 701–706 (2018).
106. See, e.g., id. § 706(2) (providing that a reviewing court shall “hold unlawful
and set aside agency action, findings, and conclusions” that are arbitrary, capri-
cious, or contrary to law).
107. See Wirtz v. Baldor Elec. Co., 337 F.2d 518, 520, 536 (D.C. Cir. 1963) (up-
holding an injunction against a rule that would establish a uniform wage in the
electrical motors and generators industry); see also Samuel L. Bray, Multiple Chan-
cellors: Reforming the National Injunction, 131 H
ARV. L. REV. 417, 437–39 (2017).
626 Harvard Journal of Law & Public Policy [Vol. 43
sparely since then until recently, these court orders enjoin en-
forcement of a policy not just against the parties to a case, but
against everyone. Since President Trump took office, district
courts have issued over forty nationwide injunctions against
the government.
108
By comparison, during President Obama’s
first two years, district courts issued a total of two nationwide
injunctions against the government.
109
Both were vacated by
the Ninth Circuit.
110
It is no exaggeration to say that virtually every major policy
of the Trump Administration has been subjected to immediate
freezing by the lower courts.
111
No other President has been
subjected to such sustained efforts to debilitate his policy
agenda.
The legal flaws underlying nationwide injunctions are myriad.
Just to summarize briefly, nationwide injunctions have no
foundation in courts’ Article III jurisdiction or traditional equi-
table powers;
112
they radically inflate the role of district judges,
allowing any one of more than 600 individuals to singlehandedly
freeze a policy nationwide, a power that no single appellate
judge or Justice can accomplish; they foreclose percolation and
108. Tessa Berenson, Inside the Trump Administration’s Fight to End Nationwide
Injunctions, T
IME (Nov. 4, 2019, 3:12 PM), https://time.com/5717541/nationwide-
injunctions-trump-administration/ [https://perma.cc/K4EK-29GC]. As of February
2020, the number is up to fifty-five. Jeffrey A. Rosen, Deputy Attorney Gen., United
States, Opening Remarks at Forum on Nationwide Injunctions and Federal Regu-
latory Program (Feb. 12, 2020), https://www.justice.gov/opa/speech/deputy-
attorney-general-jeffrey-rosen-delivers-opening-remarks-forum-nationwide
[https://perma.cc/T23U-6GKF].
109. See Log Cabin Republicans v. United States, 716 F. Supp. 2d 884, 929 (C.D.
Cal. 2010), vacated by, 658 F.3d 1162 (9th Cir. 2011); L.A. Haven Hospice, Inc. v.
Sebelius, No. CV08-4469-GW (RZX), 2009 WL 5865294, at *1 (C.D. Cal. Aug. 20,
2009), aff’d in part, vacated in part, remanded, 638 F.3d 644 (9th Cir. 2011).
110. See Log Cabin Republicans, 658 F.3d at 1168; L.A. Haven Hospice, 638 F.3d at
648 (vacating “that portion of the injunction barring enforcement of the regulation
against hospice providers other than Haven Hospice”).
111. See Jordan Fabian & Jacqueline Thomsen, Courts become turbocharged battle-
ground in Trump era, H
ILL (July 22, 2019, 6:00 AM), https://thehill.com/homenews/
administration/453881-courts-become-turbocharged-battleground-in-trump-era
[https://perma.cc/D3F8-HZ6N].
112. See Memorandum from the Attorney General to Heads of Civil Litigating
Components United States Attorneys, Litigation Guidelines for Cases Presenting
the Possibility of Nationwide Injunctions 7–8 (Sept. 13, 2018), https://www.justice.gov/
opa/press-release/file/1093881/download [https://perma.cc/Y9U6-E79W]; Bray, supra
note 107, at 425–27.
No. 3] The Role of the Executive 627
reasoned debate among lower courts, often requiring the
Supreme Court to decide complex legal issues in an emergency
posture with limited briefing; they enable transparent forum
shopping,
113
which saps public confidence in the integrity of
the judiciary; and they displace the settled mechanisms for ag-
gregate litigation of genuinely nationwide claims, such as Rule
23 class actions.
114
Of particular relevance to my topic tonight, nationwide in-
junctions also disrupt the political process. There is no better
example than the courts’ handling of the rescission of DACA.
As you recall, DACA was a discretionary policy of enforcement
forbearance adopted by President Obama’s administration.
115
The Fifth Circuit concluded that the closely related DAPA policy
(along with an expansion of DACA) was unlawful,
116
and the
Supreme Court affirmed that decision by an equally divided
vote.
117
Given that DACA was discretionary—and that four
Justices apparently thought a legally indistinguishable policy
was unlawful—President Trump’s administration understand-
ably decided to rescind DACA.
118
Importantly, however, the President coupled that rescission
with negotiations over legislation that would create a lawful
and better alternative as part of a broader immigration com-
promise.
119
In the middle of those negotiations—indeed, on the
same day the President invited cameras into the Cabinet Room
to broadcast his negotiations with bipartisan leaders from both
Houses of Congress
120
—a district judge in the Northern District
113. See Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring).
114. See Michael R. Morley, Nationwide Injunctions, Rule 23(B)(2), and the Remedial
Powers of the Lower Courts, 97 B.U.
L. REV. 615, 634–39 (2017).
115. Texas v. United States, 809 F.3d 134, 146–47 (5th Cir. 2015).
116. Id. at 146.
117. United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (mem.).
118. See Michael D. Shear & Julie Hirschfeld Davis, Trump Moves to End DACA
and Calls on Congress to Act, N.Y.
TIMES (Sept. 5, 2017), https://nyti.ms/2x7xOo2
[https://perma.cc/GW4K-CHEL].
119. Id. (discussing President Trump’s efforts to find a “replacement” for DACA).
120. See Donald J. Trump, President, United States, Remarks by President
Trump in Meeting with Bipartisan Members of Congress on Immigration (Jan. 9,
2018), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-
meeting-bipartisan-members-congress-immigration/ [https://perma.cc/7YNW-JVUT].
628 Harvard Journal of Law & Public Policy [Vol. 43
of California enjoined the rescission of DACA nationwide.
121
Unsurprisingly, the negotiations over immigration legislation
collapsed after one side achieved its preferred outcome
through judicial means.
122
A humanitarian crisis at the southern
border ensued.
123
And just this week, the Supreme Court finally
heard argument on the legality of the DACA rescission.
124
The
Court will not likely decide the case until next summer, mean-
ing that President Trump will have spent almost his entire first
term enforcing President Obama’s signature immigration policy,
even though that policy is discretionary and half the Supreme
Court concluded that a legally indistinguishable policy was
unlawful. That is not how our democratic system is supposed
to work.
To my mind, the most blatant and consequential usurpation
of executive power in our history was played out during the
administration of President George W. Bush, when the Supreme
Court, in a series of cases, set itself up as the ultimate arbiter
and superintendent of military decisions inherent in prosecut-
ing a military conflict—decisions that lie at the very core of the
President’s discretion as Commander-in-Chief.
This usurpation climaxed with the Court’s 2008 decision in
Boumediene.
125
There, the Supreme Court overturned hundreds
of years of American, and earlier British, law and practice,
which had always considered decisions as to whether to detain
foreign combatants to be purely military judgments which ci-
vilian judges had no power to review.
126
For the first time, the
Court ruled that foreign persons who had no connection with
121. See Regents of the Univ. of Cal. v. U.S. Dep’t’ of Homeland Sec., 279 F.
Supp. 3d 1011, 1048–50 (N.D. Cal. 2018) (issued January 9, 2018).
122. See Elana Schor & Burgess Everett, Senate immigration debate ends in failure,
P
OLITICO (Feb. 15, 2018, 6:15 PM), https://www.politico.com/story/2018/02/15/
immigration-daca-senate-412459 [https://perma.cc/DH7Q-LBDN].
123. Humanitarian and Security Crisis at Southern Border Reaches ‘Breaking Point,’
D
EP’T HOMELAND SECURITY (Mar. 6, 2019), https://www.dhs.gov/news/2019/03/06/
humanitarian-and-security-crisis-southern-border-reaches-breaking-point [https://
perma.cc/3FQ9-DYPT].
124. See Amy Howe, Argument analysis: Justices torn, hard to read in challenge to
decision to end DACA, SCOTUS
BLOG (Nov. 12, 2019, 2:07 PM), https://
www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-
challenge-to-decision-to-end-daca/ [https://perma.cc/53NG-JNL9].
125. Boumediene v. Bush, 553 U.S. 723 (2008).
126. See id. at 826–27, 843–48 (Scalia, J., dissenting).
No. 3] The Role of the Executive 629
the United States other than being confronted by our military
on the battlefield had “due process” rights and thus have the
right to habeas corpus to obtain judicial review of whether the
military has a sufficient evidentiary basis to hold them.
127
In essence, the Court has taken the rules that govern our
domestic criminal justice process and carried them over and
superimposed them on the nation’s activities when it is en-
gaged in armed conflict with foreign enemies. This rides
roughshod over a fundamental distinction that is integral to the
Constitution and integral to the role played by the President in
our system.
As the Preamble suggests, governments are established for
two different security reasons—to secure domestic tranquility
and to provide for defense against external dangers.
128
These
are two very different realms of government action.
In a nutshell, under the Constitution, when the government
is using its law enforcement powers domestically to discipline
an errant member of the community for a violation of law, then
protecting the liberty of the American people requires that we
sharply curtail the government’s power so it does not itself
threaten the liberties of the people.
129
Thus, the Constitution in
this arena deliberately sacrifices efficiency; invests the accused
with rights that that essentially create a level playing field be-
tween the collective interests of community and those of the
individual; and dilutes the government’s power by dividing it
and turning it on itself as a check. At each stage the judiciary is
expressly empowered to serve as a check and neutral arbiter.
130
None of these considerations are applicable when the gov-
ernment is defending the country against armed attacks from
foreign enemies. In this realm, the Constitution is concerned
with one thing—preserving the freedom of our political com-
munity by destroying the external threat.
131
Here, the Constitution
is not concerned with handicapping the government to pre-
serve other values. The Constitution does not confer “rights”
127. Id. at 770–71 (majority opinion).
128. U.S.
CONST. pmbl.
129. See, e.g., U.S.
CONST. amends. IV–VIII.
130. See U.S.
CONST. art III., § 2, cl. 1.
131. See
U.S. CONST. art. I, § 8, cl. 11–13, 15–16; id. art. II, § 2, cl. 1.
630 Harvard Journal of Law & Public Policy [Vol. 43
on foreign enemies.
132
Rather the Constitution is designed to
maximize the government’s efficiency to achieve victory—even
at the cost of “collateral damage” that would be unacceptable
in the domestic realm. The idea that the judiciary acts as a neu-
tral check on the political branches to protect foreign enemies
from our government is insane.
The impact of Boumediene has been extremely consequen-
tial.
133
For the first time in American history, our Armed Forces
are incapable of taking prisoners.
134
We are now in a crazy posi-
tion that, if we identify a terrorist enemy on the battlefield,
such as ISIS, we can kill them with drone or any other weapon.
135
But if we capture them and want to hold them at Guantanamo
or in the United States, the military is tied down in developing
evidence for an adversarial process and must spend resources
in interminable litigation.
136
The fact that our courts are now willing to invade and muck
about in these core areas of presidential responsibility illus-
trates how far the doctrine of separation of powers has been
eroded.
137
132. Boumediene, 553 U.S. at 841 (Scalia, J., dissenting) (“There is simply no sup-
port for the Court’s assertion that constitutional rights extend to aliens held out-
side U.S. sovereign territory . . . .” (citing United States v. Verdugo-Urquidez, 494
U.S. 259, 271 (1990))); see also Johnson v. Eisentrager, 339 U.S. 763, 784–85 (1950).
133. See, e.g., Beverly E. Bashor, The Liberty/Safety Paradigm: The United States’
Struggle to Discourage Violations of Civil Liberties in Times of War, 41 W.
ST. U. L.
REV. 617, 641–42 (2014) (explaining that, after the Boumediene decision, the execu-
tive branch and Congress have had to use different tactics to detain suspected
terrorists); Ernesto Hernández-López, Detaining ISIS: Habeas and the Phantom Menace,
71 O
KLA. L. REV. 1109, 1142–51 (2019).
134. See Robert M. Chesney, Who May Be Held? Military Detention Through the
Habeas Lens, 52 B.C.
L. REV. 769, 769 (2011) (describing how unclear the law is on
whether the United States can detain individuals).
135. See Jonathan G. D’Errico, Executive Power, Drone Executions, and the Due
Process Rights of American Citizens, 87 F
ORDHAM L. REV. 1185, 1190–93 (2018).
136. See Boumediene, 553 U.S. at 769 (“Habeas corpus proceedings may require
expenditure of funds by the Government and may divert the attention of military
personnel from other pressing tasks.”).
137. See Heather P. Scribner, A Fundamental Misconception of Separation of Powers:
Boumediene v. Bush, 14 T
EX. REV. L. & POL. 90, 160–62 (2009).
No. 3] The Role of the Executive 631
C
ONCLUSION
In this partisan age, we should take special care not to allow
the passions of the moment to cause us to permanently disfig-
ure the genius of our constitutional structure. As we look back
over the sweep of American history, it has been the American
presidency that has best fulfilled the vision of the Founders. It
has brought to our republic a dynamism and effectiveness that
other democracies have lacked.
At every critical juncture where the country has faced a great
challenge—whether it be in our earliest years as the weak, nas-
cent country combating regional rebellions, and maneuvering
for survival in a world of far stronger nations; whether it be
during our period of continental expansion, with the Louisiana
Purchase, and the acquisition of Mexican territory; whether it
be the Civil War, the epic test of the nation; World War II and
the struggle against fascism; the Cold War and the challenge of
Communism; the struggle against racial discrimination; and
most recently, the fight against Islamist Fascism and interna-
tional terrorism—one would have to say that it has been the
presidency that has stepped to the fore and provided the leader-
ship, consistency, energy, and perseverance that allowed us to
surmount the challenge and brought us success.
In so many areas, it is critical to our nation’s future that we
restore and preserve in their full vigor our Founding principles.
Not the least of these is the Framers’ vision of a strong, inde-
pendent executive, chosen by the country as a whole.
CIVIC CHARITY AND THE CONSTITUTION
THOMAS B. GRIFFITH
*
In 2018, Professor Amy Chua published a book titled, Political
Tribes: Group Instinct and the Fate of Nations.
1
By Professor
Chua’s account, the idea for the book started as a critique of the
failure of American foreign policy to recognize that tribal loyalties
were the most important political commitments in Vietnam,
Afghanistan, and Iraq.
2
But as Professor Chua studied the role
such loyalties played in these countries, she recognized that the
United States is itself divided among political tribes.
3
Of course,
Professor Chua is not the first or the only scholar or pundit to
point this out.
4
I am neither a scholar nor a pundit, but I am an observer of
the American political scene. I’ve lived during the Cold War
and the Cuban Missile Crisis. I remember well the massive
street demonstrations protesting American involvement in the
war in Vietnam, race riots in the wake of the assassination of
Martin Luther King, Jr., the assassinations of President John F.
* Judge, United States Court of Appeals for the District of Columbia Circuit.
This Essay is based on remarks given at Harvard Law School in January 2019.
1. A
MY CHUA, POLITICAL TRIBES: GROUP INSTINCT AND THE FATE OF NATIONS
(2018).
2. See id. at 2–3.
3. Id. at 166, 177.
4. See, e.g., B
EN SASSE, THEM: WHY WE HATE EACH OTHER—AND HOW TO HEAL
(2018); Arthur C. Brooks, Opinion, Our Culture of Contempt, N.Y. TIMES (Mar. 2,
2019), https://nyti.ms/2Vw3onl [https://perma.cc/TS85-VQFD]; David Brooks,
Opinion, The Retreat to Tribalism, N.Y.
TIMES (Jan. 1, 2018), https://nyti.ms/
2DL1Ddi [https://perma.cc/38RD-X2W2]; Michael Gerson, Opinion, Tribalism tri-
umphs in America, W
ASH. POST (Sept. 18, 2017), https://www.washingtonpost.com/
opinions/tribalism-triumphs-in-america/2017/09/18/7c6a841a-9c95-11e7-9083-
fbfddf6804c2_story.html [https://perma.cc/ZYF4-XYNW]; Andrew Sullivan, America
Wasn’t Built for Humans, N.Y.
MAG. (Sept. 18, 2017), https://nymag.com/
intelligencer/2017/09/can-democracy-survive-tribalism.html [https://perma.cc/
MU7C-VT9T]; Arthur C. Brooks, President, Am. Enter. Inst., Commencement
Address at Brigham Young University: More Love, Less Contempt (Apr. 25, 2019),
https://speeches.byu.edu/talks/arthur-c-brooks/more-love-less-contempt/ [https://
perma.cc/2ZHT-E777].
634 Harvard Journal of Law & Public Policy [Vol. 43
Kennedy and his brother Robert, the resignation of President
Richard Nixon, and the impeachment and trial of President Bill
Clinton. I mention all of this to provide some context for the
belief that, in my lifetime, the Republic has been confronted
with no more serious a challenge to its well-being and maybe
even its survival than it faces today from political tribalism.
I am not alone in playing the role of Jeremiah. New York
University’s Professor Jonathan Haidt, whose groundbreaking
scholarship helps us better understand the reasons competing
groups see reality so differently,
5
is not known as a pessimist.
But recently he sounded an ominous alarm. “[T]here is a very
good chance,” Professor Haidt warned, “that in the next 30
years we will have a catastrophic failure of our democracy.”
6
The reason for his concern? “We just don’t know,” he observed,
“what a democracy looks like when you drain all the trust out
of the system.”
7
Can we prove Professor Haidt’s gloomy forecast wrong? At
the very least, our public debates need more civility. Peter
Wehner describes this virtue so vital to the functioning of our
civic institutions:
Civility has to do with . . . the respect we owe others
as . . . fellow human beings. It is both an animating spirit
and a mode of discourse. It establishes limits so we don’t
treat opponents as enemies. And it helps inoculate us
against one of the unrelenting temptations in politics (and in
life more broadly), which is to demonize and dehumanize
those who hold views different from our own. . . .
. . . [C]ivility, properly understood, advances rigorous ar-
guments, for a simple reason: it forecloses ad hominem at-
tacks, which is the refuge of sloppy, undisciplined minds.
8
5. See JONATHAN HAIDT, THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED
BY
POLITICS AND RELIGION (2012).
6. Paul Kelly, ‘Very good chance’ democracy is doomed in America, says Haidt,
A
USTRALIAN (July 20, 2019, 1:00 AM), https://www.theaustralian.com.au/nation/
politics/very-good-chance-democracy-is-doomed-in-america-says-haidt/news-
story/0106ec1c458a0b5e3844545514a55b5a [https://perma.cc/J3R6-T8H8].
7. Id.
8. Peter Wehner, Civility as a Political Virtue, E
THICS & PUB. POL’Y CTR. (Dec. 1,
2010), https://eppc.org/publications/civility-as-a-political-virtue/ [https://perma.cc/
U27W-VQ4L].
No. 3] Civic Charity and the Constitution 635
But civility is the very least we should expect of those in the
public square. As Arthur Brooks put it, “Tell people, ‘My
spouse and I are civil to each other,’ and they’ll tell you to get
counseling.”
9
We must do better, and fortunately, we have a model. In
1787, the Framers set aside their tribal loyalties in a successful
effort to form a more perfect Union. In a fascinating piece of
historical scholarship titled, The Original Meaning of Civility:
Democratic Deliberation at the Philadelphia Constitutional Convention,
Derek Webb describes how the Framers overcame tribalism at
the Philadelphia Convention to create the Constitution.
10
Much
of what I will say about the Convention is drawn from Webb’s
article.
In early July of 1787, the Convention was in a “deplora-
ble state” and faced the very real prospect of failure.
11
George
Washington, Benjamin Franklin, and others feared that “disso-
lution” of the convention was “hourly to be apprehended.”
12
And yet by mid-September, they had produced the Constitution
that would be the basis for our enduring success as a nation. In
his letter transmitting the Constitution to Congress, Washington
attributed this surprising turn of events—what one popular
account of the convention called the “Miracle at Philadelphia”
13
—
to the “spirit of amity, and of that mutual deference . . . which
the peculiarity of our political situation rendered indispensable.”
14
According to Webb, three factors helped create this “indis-
pensable” “spirit of amity [and] mutual deference.” First, the
delegates in the Convention were housed in the same city for
9. ARTHUR C. BROOKS, LOVE YOUR ENEMIES: HOW DECENT PEOPLE CAN SAVE
AMERICA FROM THE CULTURE OF CONTEMPT 12 (2019).
10. Derek A. Webb, The Original Meaning of Civility: Democratic Deliberation at the
Philadelphia Constitutional Convention, 64 S.C. L.
REV. 183 (2012). Unless otherwise
noted, Webb draws his information from R
ICHARD BEEMAN, PLAIN, HONEST MEN:
THE MAKING OF THE AMERICAN CONSTITUTION (2009) and JAMES MADISON, NOTES
OF
DEBATES IN THE FEDERAL CONVENTION OF 1787 (Adrienne Koch ed., 1984).
11. Letter from Jared Sparks to James Madison (Mar. 30, 1831), https://www.loc.gov/
resource/mjm.23_0611_0613/?st=gallery [https://perma.cc/ABQ3-BLZE].
12. Webb, supra note 10, at 197 (quoting
BEEMAN, supra note 10, at 185) (internal
quotation marks omitted).
13. C
ATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF THE
CONSTITUTIONAL CONVENTION MAY TO SEPTEMBER 1787 (1966).
14. Webb, supra note 10, at 197 (quoting M
ADISON, supra note 10, at 627).
636 Harvard Journal of Law & Public Policy [Vol. 43
four months, making informal social interaction unavoidable.
15
They gathered for deliberations Mondays through Saturdays
from “10 or 11 a.m. to 3 or 3:30 p.m.”
16
Afterwards they would
take dinner together at local taverns.
17
After dinner, the dele-
gates enjoyed evening tea together.
18
Eventually they formed
dinner clubs that were open to delegates from all the states and
cut across regional and ideological lines.
19
At several key junc-
tures that summer, Benjamin Franklin threw open the doors of
his home for lavish dinner parties that featured the finest cuisine
available, topped off with Franklin’s special casks of porter.
20
As
George Mason wrote to his son, dinner parties at Franklin’s
home allowed almost perfect strangers with glowing political
resumes from various states to “grow into some acquaintance
with each other” and to “form a proper correspondence of
sentiments” that would eventually prove to supply the good
will needed to craft the Constitution.
21
Second, the rules of the
Convention worked to encourage cooperation. Attendance was
mandatory, which meant the delegates were physically present
with one another while in session.
22
No one spoke to an empty
chamber. And when a delegate held the floor, the rules forbade
others from talking or even reading.
23
No official record of
votes was kept, and the proceedings were in secret, which al-
lowed for an openness to argument and for the changing of
views.
24
Third, the Framers were willing to set aside their parochial
political interests and compromise for the sake of a workable
constitution. The gloomy forecasts of dissolution and failure
were due, in large measure, to the inability of the delegates to
resolve the most difficult issue confronting the Convention:
should the representation of states in Congress be on an equal
15. Id. at 192.
16. Id.
17. Id.
18. Id.
19. Id.
20. Id. at 193.
21. See id. (quoting
BEEMAN, supra note 10, at 53) (internal quotation marks omitted).
22. Id. at 195.
23. Id. at 194.
24. Id. at 195.
No. 3] Civic Charity and the Constitution 637
basis or proportional to their populations?
25
Faced with this
potentially fatal stalemate, the delegates made the critical deci-
sion that failure to create a constitution then and there was not
an option. They determined that they would compromise on
this central controversy even though they could not be certain
in advance what the terms of the compromise would be.
26
Significantly, the terms of what is now known as the Great
Compromise were first created by a committee of eleven that
met in Franklin’s home.
27
This setting emphasized small group
dynamics, familiarity, and domesticity. Importantly too, the
committee was composed of carefully selected moderates, not
ideologues.
28
But I think more went into the “spirit of amity [and] mutual
deference” than can be gleaned from the rules, procedures, and
sociality that shaped the work of the Philadelphia Convention
of 1787. Upon the retirement of Justice Kennedy from the
Supreme Court, Jeffrey Rosen commented, “Kennedy was an
idealist, a patriot, and a lover of the Constitution, who believed
fervently that the greatest document of freedom ever written pro-
vides a framework for citizens of different perspectives to agree and
disagree with each other in civil terms.”
29
It is no doubt true that
the Constitution creates a framework for a civil debate among
citizens and between the branches as they exercise checks and
balances on each other. But I believe that there is something
more at work in the success of the 1787 Constitution.
That something more is an ardent desire for union. Professor
Akhil Amar asserts that the most fundamental liberty guaranteed
by the Constitution is the right of We, the People, to make the
rules by which society is governed through our politically ac-
countable representatives.
30
I agree, but my point is a different
one. I believe that the most fundamental impulse that created the
Constitution in the summer of 1787 was the yearning for union.
25. Id. at 212.
26. See id. at 209–16.
27. Id. at 216.
28. See id. at 216, 218.
29. Jeffrey Rosen, The Justice Who Believed in America, A
TLANTIC (June 27, 2018)
(emphasis added), https://www.theatlantic.com/ideas/archive/2018/06/celebrating-
anthony-kennedy/563966/ [https://perma.cc/7WST-WPWZ].
30. See A
KHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 10 (2005).
638 Harvard Journal of Law & Public Policy [Vol. 43
The Preamble announces that the purpose of the Constitution is
“to form a more perfect Union.”
31
In other words, the Constitution
assumes the coming together of a people who want to create a
community. And not just in neighborhoods, villages, towns,
counties, or states, but on a continent. And not just with people
of their own race, religion, background, class, or viewpoint.
The Constitution creates a structure of governance that can al-
low for human flourishing, but without this desire to unite, the
Constitution cannot create a national community in which
that flourishing will occur. Without this desire to unite, the
Constitution is form without substance.
When politicians and judges like me take an oath to uphold
the Constitution, we commit to work for unity; we make a sol-
emn pledge that we will not be agents of division. This vow to
work for national unity is more than gauzy sentimentality or
merely a call for civility in our public discourse. Instead, it is a
studied and determined choice to work at union, and, as we
learn from the example of the delegates at the Philadelphia
Convention, that requires compromise. The Constitution was
created in the first instance by delegates who determined that
they would compromise some of their dearly held views for
the sake of union. More than that, and quite remarkably, these
delegates determined that they would strike a compromise
even before they knew what the terms of the compromise would
be. In short and to the point, they valued national unity over
their own particular views. Is that the key to the way forward
during this time of division?
The delegates’ impulse to place community above individual
preferences tapped into a deep strain of the American experi-
ence. In his book, Bonds of Affection—Civic Charity and the Making
of America: Winthrop, Jefferson, and Lincoln, Matthew Holland
calls this element of our national DNA “civic charity” and high-
lights four moments in our history when the exercise of this vir-
tue helped shape the country we hope America will yet be.
32
In the spring of 1630, John Winthrop, the newly elected gov-
ernor of the Massachusetts Bay Colony, gave a sermon aboard
31. U.S. CONST. pmbl.
32. M
ATTHEW S. HOLLAND, BONDS OF AFFECTION—CIVIC CHARITY AND THE
MAKING OF AMERICA: WINTHROP, JEFFERSON, AND LINCOLN 6 (2007).
No. 3] Civic Charity and the Constitution 639
the ship Arbella.
33
Praised by scholars as the “Ur-text of American
literature,”
34
Winthrop called upon the members of the colony
to live with each other “in the bond of brotherly affection.”
35
He preached, “We must uphold a familiar commerce together
in all meekness, gentleness, patience, and liberality. We must
delight in each other, make each other’s conditions our own,
rejoice together, mourn together, labor and suffer together, al-
ways having before our eyes our commission and community
in the work.”
36
In this appeal, Winthrop “established a national
mythos that human beings are social beings, dependent upon
other social beings not just to survive but to flourish.”
37
In March 1801, following what many consider the ugliest
campaign for the most consequential presidential election in
the nation’s history—“the first real test of whether American
national power could be transferred without violent resistance
beforehand or bitter retribution afterwards”
38
—the victorious
Thomas Jefferson gave his First Inaugural Address, his “most
developed and revealing public statement concerning the
foundational ideals of American politics.”
39
The bitter election
contest “gave Jefferson pause to consider a different threat to
the verities of 1776 than those he saw in Federalist policy. Now
undermining successful self-rule was what Jefferson consid-
ered a dangerous lack of love among American citizens.”
40
Fa-
mously, Jefferson declared, “We are all republicans: we are all
federalists.”
41
Less famously, but more importantly, he contin-
ued, “Let us then, fellow citizens, unite with one heart and one
mind, let us restore to social intercourse that harmony and af-
fection without which liberty, and even life itself, are but
33. Id. at 1.
34. Id.
35. Id. (quoting John Winthrop, Governor, Mass. Bay Colony, A Model of Christian
Charity (Apr. 8, 1630)) (internal quotation marks omitted).
36. Id. (quoting Winthrop, supra note 35) (internal quotation marks omitted).
37. Id. at 242.
38. Id. at 142.
39. Id. at 136.
40. Id. at 138.
41. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in 33 T
HE PAPERS
OF
THOMAS JEFFERSON 148, 149 (Barbara B. Oberg et al. eds., 2006).
640 Harvard Journal of Law & Public Policy [Vol. 43
dreary things.”
42
In a letter written just weeks later, Jefferson
recognized, “It will be a great blessing to our country if we can
once more restore harmony and social love among its citizens. I
confess, for myself, it is almost the first object of my heart, and
one to which I would sacrifice everything but principle.”
43
On the eve of the Civil War, with the Republic facing an exis-
tential crisis, Abraham Lincoln delivered his First Inaugural
Address, a last-ditch effort to preserve the Union that had
been created by the Constitution.
44
In words and phrases that
have surely become American scripture, our greatest President
declared:
We are not enemies, but friends. We must not be enemies.
Though passion may have strained, it must not break our
bonds of affection. The mystic chords of memory, stretching
from every battlefield, and patriot grave, to every living
heart and hearthstone, all over this broad land, will yet swell
the chorus of the Union, when again touched, as surely they
will be, by the better angels of our nature.
45
Tragically, Lincoln’s plea for unity failed. War came, and we
live with its consequences to this day.
Four years later, with victory over the Confederacy near at
hand, Lincoln’s Second Inaugural Address launched his ambi-
tious project to reconstruct a nation that had been torn asun-
der.
46
His remarks at that time, in the wake of an unparalleled
national tragedy and on the cusp of a moment filled with
promise, have been described as “without precedent in the civil
history of the world,” giving voice to “a generosity so grand
and unexpected as to nearly defy human comprehension.”
47
Another verse of American scripture: “With malice toward
42. Id.
43. H
OLLAND, supra note 32, at 138 (quoting Letter from Thomas Jefferson to
Elbridge Gerry (Mar. 29, 1801), in 33 T
HE PAPERS OF THOMAS JEFFERSON, supra
note 41, at 490, 491) (internal quotation marks omitted).
44. See id. at 200.
45. Id. at 169 (quoting Abraham Lincoln, First Inaugural Address (Mar. 4, 1861),
in 4 C
OLLECTED WORKS OF ABRAHAM LINCOLN 262, 271 (Roy P. Basler et al. eds.,
1953)) (internal quotation marks omitted).
46. See id. at 219–20.
47. Id. at 222–23.
No. 3] Civic Charity and the Constitution 641
none; with charity for all; with firmness in the right . . . let us
strive on to . . . bind up the nation’s wounds . . . .”
48
As Professor Amar points out, the unity Lincoln sought after
the Civil War differed from the unity he had envisioned before
the Civil War.
49
In an address delivered a mere four days be-
fore his assassination, Lincoln pressed for the extension of the
franchise to black men.
50
According to Professor Amar:
This was an important transformation in Lincoln’s view of
the Union. For a Union aims to unite not just territory, or
states, but also persons—flesh and blood human beings.
Lincoln’s early vision was of an ultimate Union that would
largely be of, by, and for whites; after getting their freedom,
blacks would be encouraged to move elsewhere—say, Africa
or [C]entral America. But the experience of the Civil War
itself, and the bravery exhibited by black soldiers, helped
persuade Lincoln to embrace a more inclusive conception of
Union, bringing together not merely different regions but al-
so different races.
51
What then of our current moment? How strong are our
“bonds of affection”? The Constitution’s form of government
not only allows spirited disagreement, it requires it. But the
Constitution cannot withstand a citizenry whose debates are
filled with contempt for one another. As Michael Gerson ob-
serves, “The heroes of America are heroes of unity. Our political
system is designed for vigorous disagreement. It is not de-
signed for irreconcilable contempt. Such contempt loosens the
ties of citizenship and undermines the idea of patriotism.”
52
The Constitution anticipates instead a citizenship whose
“bonds of affection” cross regional, religious, racial, and ideo-
logical boundaries. For the Constitution to succeed, We the
People must unite to create a society based on shared values.
48. Abraham Lincoln, Second Inaugural Address (Mar. 4, 1865), in 8 COLLECTED
WORKS OF ABRAHAM LINCOLN 332, 333 (Roy P. Basler et al. eds., 1953).
49. Akhil Reed Amar, The David C. Baum Lecture: Abraham Lincoln and the American
Union, 2001 U.
ILL. L. REV. 1109, 1132.
50. Id.
51. Id.
52. Michael Gerson, Opinion, A primer on political reality, W
ASH. POST (Feb. 19,
2010), https://www.washingtonpost.com/wp-dyn/content/article/2010/02/18/
AR2010021803414.html [https://perma.cc/M27U-GL2H].
642 Harvard Journal of Law & Public Policy [Vol. 43
We will disagree over the content of those values. What is
equality? What is liberty? But we must, in the words of the
Declaration of Independence, “mutually pledge”
53
to stay to-
gether as we debate their meaning. We must carry out those
arguments in the “spirit of amity [and] mutual deference.”
Perhaps most important of all, we must compromise so that we
can accommodate others for the sake of union. Without that
commitment, our Constitution will fail.
Commenting on one such debate over the meaning of equality
and liberty—today’s clash between needed antidiscrimination
laws and cherished religious liberty—Professor Martha Minow,
the former dean of Harvard Law School, notes that compromise
can be seen as a departure from principle.
54
For some, to com-
promise is to abandon rights and commitments. But as Professor
Minow points out, compromise can also allow the type of ac-
commodation that is indispensable in a diverse society.
55
Where possible, Professor Minow argues, both sides should
seek convergence and compromise.
56
Instead of striving for total
victory, each side should search for ways to accommodate the
legitimate concerns of the other.
57
To seek convergence and
compromise for the sake of unity is an expression of the civic
charity needed to breathe life into the Constitution. In his later
years, Jefferson observed that “a government held together by
the bands of reason only, requires much compromise of opin-
ion” and that “a great deal of indulgence is necessary to
strengthen habits of harmony and fraternity.”
58
These are ex-
pressions of the “spirit of amity [and] mutual deference” that
created the Constitution. Washington thought it was “indis-
pensable” in the summer of 1787. Surely it is “indispensable”
today.
53. THE DECLARATION OF INDEPENDENCE para. 5 (U.S. 1776).
54. Martha Minow, Principles or Compromises: Accommodating Gender Equality and
Religious Freedom in Multicultural Societies, in G
ENDER, RELIGION, & FAMILY LAW:
THEORIZING CONFLICTS BETWEEN WOMEN’S RIGHTS AND CULTURAL TRADITIONS 3,
12 (Lisa Fishbayn Joffe & Sylvia Neil eds., 2013).
55. Id. at 13.
56. Id. at 12–15.
57. Id.
58. Letter from Thomas Jefferson to Edward Livingston (Apr. 4, 1824), https://
www.loc.gov/resource/mtj1.054_0441_0443/?st=gallery [https://perma.cc/Y7SW-5QC9].
No. 3] Civic Charity and the Constitution 643
Professor Chua is optimistic that we can overcome the tribal
politics that currently beset us.
59
I am sorry to say that I am not.
Never before has a people been less willing to put aside em-
blems of its tribal identities to create a nation in pursuit of a
common good. The task is daunting. Christian scripture speaks
of a time when every nation, kindred, tongue, and people will
be united, but that is in a vision of a distant future under very
different and extraordinary circumstances.
60
Perhaps what we
are trying to accomplish simply is not possible absent those cir-
cumstances. As Professor Haidt points out, the “human mind is
prepared for tribalism.”
61
We are “deeply intuitive creatures
whose gut feelings drive strategic reasoning.”
62
A multicultural
democracy is not a natural condition for us. At best it is a frag-
ile possibility.
63
Fragile, yes. Very fragile. And our political leaders, the stew-
ards of our Constitution and its norms, our pundits, and our
citizenry must keep that in mind. Always.
When he launched his candidacy for the presidency in 1968,
Robert F. Kennedy declared: “I want the . . . United States . . . to
stand for . . . reconciliation of men.”
64
In his translation of the
New Testament, William Tyndale used the word “reconcilia-
tion” to translate the Greek word “katallagē,”
65
which means “a
change from enmity to friendship”
66
or “the means through
which harmony is restored.”
67
But sometimes he used a newly
created word to express the concept: “atonement” or “at-one-
ment.”
68
59. CHUA, supra note 1, at 197–202.
60. Revelation 7:9.
61. Kelly, supra note 6 (internal quotation marks omitted).
62. Id.
63. Id.
64. Robert F. Kennedy, Presidential Campaign Announcement (Mar. 16, 1968),
https://www.c-span.org/video/?443225-1/robert-f-kennedy-presidential-campaign-
announcement [https://perma.cc/DP9X-GVK9].
65. David Rolph Seely, William Tyndale and the Language of At-one-ment, in T
HE
KING JAMES BIBLE AND THE RESTORATION 25, 35–36 (Kent P. Jackson ed., 2011).
66. A
N INTERMEDIATE GREEK-ENGLISH LEXICON: FOUNDED UPON THE SEVENTH
EDITION OF LIDDELL AND SCOTT’S GREEK-ENGLISH LEXICON 190 (1889).
67. M
ERCER DICTIONARY OF THE BIBLE 75 (Watson E. Mills et al. eds., 1990).
68. Seely, supra note 65, at 35–36.
644 Harvard Journal of Law & Public Policy [Vol. 43
With wisdom, Benjamin Franklin cautioned his fellow dele-
gates to the Philadelphia Convention that it would take hard
work to “keep” the Republic they had just created.
69
That hard
work requires civic charity, now more than ever.
69. Papers of Dr. James McHenry on the Federal Convention of 1787, in DOCUMENTS
ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES 923, 952
(Charles C. Tansill ed., 1927).
SIXTH AMENDMENT FEDERALISM
LOUIS J. CAPOZZI III
*
Scholarship on the right to appointed counsel in misdemeanor cases
has generally focused on the U.S. Constitution, neglecting the role of
state law. As states across the country fail to provide effective counsel
in more serious cases, some academics have argued that the U.S.
Supreme Court should create a constitutional right to appointed
counsel in all criminal cases.
This Article focuses instead on state law, arguing that federalism is
the key to reforming our misdemeanor indigent defense system. In the
process, it pursues both descriptive and normative goals. Descriptively,
it documents the current law of the fifty States on the right to ap-
pointed counsel and finds that states have not acted in a stereotypically
miserly manner. Thirty-four states guarantee a broader right to ap-
pointed counsel than the U.S. Supreme Court requires.
Normatively, this Article advocates for a more dynamic federalism
to improve our misdemeanor indigent defense system. First, this
Article challenges the popular scholarly view that there should be a
federal constitutional right to appointed counsel in all criminal cases,
addressing both legal and policy arguments. Second, this Article fo-
cuses on federalism. Because the U.S. Supreme Court has not imposed
a uniform solution on all of the states, there is room for experimenta-
tion. But many states have not yet seized the opportunity. Intending
to shift the conversation toward finding innovative solutions within
federalism, this Article introduces three alternatives to providing ap-
* Law Clerk to Judge Anthony Scirica, United States Court of Appeals for the
Third Circuit. I am grateful to Judge Stephanos Bibas for his guidance throughout
the process of writing this Article. I have been inspired by his scholarship, and I
am grateful to have him as a mentor. I would also like to thank my commenters:
Stephanie Barclay, James Kim, Renée Lettow Lerner, James Lindgren, Joshua
Macey, David Rudovsky, William Seidleck, John Stinneford, Mark Storslee,
Catherine Struve, and Kevin Wynosky. Further, I am indebted to Nicole Baade,
James McGlone, Stuart Slayton, and all the excellent editors at the Harvard Journal
of Law & Public Policy for moving this Article to publication. Finally, I am thankful
to the practitioners who took time to speak to me and teach me about the misde-
meanor justice system.
646 Harvard Journal of Law & Public Policy [Vol. 43
pointed counsel in misdemeanor cases: non-prosecution, diversion,
and an inquisitorial system of adjudication.
I
NTRODUCTION: MISDEMEANOR TRIALS IN
MONTGOMERY COUNTY, PENNSYLVANIA .......... 648
I. E
XISTING SIXTH AMENDMENT LAW ON THE RIGHT
TO APPOINTED COUNSEL ...................................... 653
A. The Right-to-Counsel Revolution ............... 653
B. Scott v. Illinois ................................................. 654
C. Suspended Sentences .................................... 656
D. Using Uncounseled Convictions to Enhance
Sentences......................................................... 656
E. Summary of Sixth Amendment Law .......... 658
II. E
XISTING STATE LAW ON THE APPOINTMENT OF
COUNSEL ................................................................ 660
A. A Typical Misdemeanor Case ...................... 661
B. Overview of State-Law Approaches to the
Right to Counsel ............................................ 667
1. Providing Counsel in All Criminal
Cases ......................................................... 670
2. Adopting the Authorized Imprisonment
Test ............................................................ 671
3. Providing Counsel to Defendants
Charged with Offenses Allowing
Sufficient Lengths of Authorized
Incarceration ............................................ 673
4. Providing Counsel to Defendants Based
on Fine Levels .......................................... 675
5. States Not Guaranteeing More Protection
than Scott .................................................. 675
6. Following Scott but Rejecting Nichols ... 679
C. How the States Arrived at their Present
Laws ................................................................ 679
1. State Legislatures .................................... 680
2. Rule Promulgation .................................. 682
3. State Judiciaries and State Constitutional
Law ........................................................... 683
a. State Constitutional Texts ............... 683
b. State Histories ................................... 684
c. State Precedents ................................ 684
No. 3] Sixth Amendment Federalism 647
d. Different Approaches to U.S.
Supreme Court Precedent ............... 685
D. The Reality on the Ground: Is the Right
Being Honored? ............................................. 686
III. L
AW AND POLICY: SHOULD THERE BE A RIGHT TO
APPOINTED COUNSEL BEYOND WHAT SCOTT
REQUIRES? .............................................................. 691
A. Is There a Constitutional Right to Appointed
Counsel in All Criminal Cases? ................... 691
1. Federal Constitution ............................... 691
2. State Constitutions .................................. 696
B. Policy Arguments For and Against a Broader
Right to Counsel than Scott Requires ......... 701
1. Policy Arguments in Favor of a Broader
Right .......................................................... 701
2. Policy Arguments Against a Broader
Right .......................................................... 705
3. Assessment .............................................. 711
IV. H
OW A BETTER FEDERALISM IS ESSENTIAL TO
FIXING MISDEMEANOR JUSTICE ............................ 713
A. A Federalist Success Story on Paper ........... 714
B. Hold the Applause ........................................ 715
C. Pursuing New Ideas Within Our Federalist
System ............................................................. 719
1. Non-Prosecution or Reclassification .... 719
2. Diversion .................................................. 722
3. An Inquisitorial System ......................... 723
a. Jury Trial ............................................ 727
b. Plea Bargaining ................................. 727
c. Dual Trial Court Systems ................ 728
d. Appeals .............................................. 729
e. Personnel ........................................... 730
D. A Better Federalism ....................................... 730
C
ONCLUSION ................................................................ 731
648 Harvard Journal of Law & Public Policy [Vol. 43
INTRODUCTION: MISDEMEANOR TRIALS IN MONTGOMERY
COUNTY, PENNSYLVANIA
On a Tuesday afternoon in King of Prussia, Pennsylvania, a
magisterial district judge is conducting shoplifting trials. His
court, the judge explains, “gets a ton of business” from shop-
lifting at the massive King of Prussia Mall across the street. The
defendant in his next case, Mindy, is accused of stealing sixty
dollars’ worth of clothing from a store. Outside the courtroom,
the defendant had struck a bargain with the police officer pros-
ecuting her case. She would plead guilty to shoplifting, she of-
fered, if she could get a payment plan for the fine. The police
officer is fine with that arrangement.
As the trial begins, the judge takes control of the proceeding.
He asks the defendant a variety of questions about her back-
ground, establishing that she has a job as a store clerk and no
criminal record. After Mindy tells the judge she wishes to plead
guilty, the judge asks the police officer if the Commonwealth
would accept a guilty plea to the lower offense of disorderly
conduct. The police officer agrees. The judge tells Mindy he is
cutting her a “major break” and asks her to also thank the of-
ficer, which she happily does. The judge then imposes a fine of
$160 and agrees to a payment plan by which Mindy will pay
$20 per month. After Mindy leaves, the judge explains to me
that a retail theft conviction would cost Mindy her job. Because
she was a first-time offender, he wanted to cut her a break. As
he put it, “peoples’ lives are complicated, and I try to cut peo-
ple a break unless someone’s an idiot.”
The informal proceeding took all of about ten minutes. There
was no formal submission of evidence or cross-examination.
And yet Mindy came into the courtroom without a criminal
record, and left with one. Perhaps most interestingly, there was
no defense lawyer. Indeed, there were no defense lawyers at
any of the twelve criminal trials I watched that morning in
Montgomery County.
Criminal law scholarship has typically covered misdemeanors
and petty offenses only lightly.
1
These labels encompass a vari-
1. See Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. 1313, 1315 (2012)
(denouncing the “felony-centric” view of criminal law). Some states classify mis-
demeanors and “petty” offenses separately. In general, when the distinction ex-
No. 3] Sixth Amendment Federalism 649
ety of offenses, including driving with a suspended license,
disorderly conduct, drug possession, shoplifting, harassment,
underage drinking, minor assault, vandalism, and even hunt-
ing oysters without a license.
2
Compared with felonies and cap-
ital cases, the stakes may seem low. But misdemeanors domi-
nate our criminal justice system. About fifteen million
misdemeanors are processed in the United States each year,
easily dwarfing the number of felonies.
3
Misdemeanors matter.
In misdemeanor cases, a significant percentage of criminal
defendants do not have a federal constitutional right to ap-
pointed counsel. In Scott v. Illinois,
4
the U.S. Supreme Court
held that states are obligated to appoint counsel to indigent de-
fendants only when a sentence of imprisonment is imposed.
5
When other criminal punishments are imposed—most com-
monly fines—the Federal Constitution does not require States
to appoint counsel.
6
If that does not sound like much, it is
worth remembering that many, if not most, criminal charges
brought in the state courts are low-level misdemeanors that are
generally punished solely with fines.
7
Thus, States have the
discretion not to appoint counsel in a large portion of criminal
cases.
ists, a petty offense is considered less serious. Because not all states recognize
petty offenses, the term “misdemeanor” refers herein to both.
2. See id. at 1321; Sarah Mollett, The Chesapeake Bay’s Oysters: Current Status and
Strategies for Improvement, 18 P
ENN ST. ENVTL. L. REV. 257, 270 (2010).
3. See R
ICHARD Y. SCHAUFFLER ET AL., NAT’L CTR. FOR STATE COURTS, EXAMINING
THE
WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 45,
47 (2010), http://www.courtstatistics.org/Other-Pages/~/media/Microsites/Files/CSP/
EWSC-2008-Online.ashx [https://perma.cc/5DBA-5P6D].
4. 440 U.S. 367 (1979).
5. Id. at 373–74. The States must also appoint counsel before imposing suspended
sentences that could result in the defendant being actually imprisoned. Alabama
v. Shelton, 535 U.S. 654, 658 (2002).
6. Scott, 440 U.S. at 373–74.
7. In 2018, Texas had around 1.1 million non-traffic misdemeanor cases in the
justice and municipal courts where the defendant could only be punished by fine,
and thus was not entitled to appointed counsel. O
FFICE OF COURT ADMIN., ANNUAL
STATISTICAL REPORT FOR THE TEXAS JUDICIARY FISCAL YEAR 2018, at Detail 50
(2018), https://www.txcourts.gov/media/1443455/2018-ar-statistical-final.pdf [https://
perma.cc/X7UY-PY44]. That same year, about 290,000 criminal cases were filed in
the Texas District Courts, where defendants charged with more serious misde-
meanors or felonies are entitled to appointed counsel. See id. at Court-Level 20. In
other words, the number of criminal cases where defendants were not entitled to
appointed counsel easily dwarfed the number of cases where they were.
650 Harvard Journal of Law & Public Policy [Vol. 43
Most scholars who have considered the right to appointed
counsel in misdemeanor cases argue Scott v. Illinois was erro-
neous and should be overruled.
8
Indeed, some scholars de-
nounce the decision in strong terms, declaring it at odds with
the Supreme Court’s important decision in Gideon v. Wainwright,
9
which guaranteed indigent defendants the right to appointed
counsel in felony cases.
10
8. See, e.g., Russell L. Christopher, Appointed Counsel and Jury Trial: The Rights
that Undermine the Other Rights, 75 W
ASH. & LEE L. REV. 703, 777 (2018) (arguing
Scott clashes “under some circumstances, with ten constitutional rights emanating
from the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments”); Lauren Sudeall
Lucas, Public Defense Litigation: An Overview, 51 I
ND. L. REV. 89, 108 (2018) (de-
nouncing Scott); Brandon Buskey & Lauren Sudeall Lucas, Keeping Gideon’s Prom-
ise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases, 85
F
ORDHAM L. REV. 2299, 2303–04 (2017) (“[T]he Supreme Court’s decision in Scott
is fundamentally flawed . . . .”); Brian M. Murray, Beyond the Right to Counsel: In-
creasing Notice of Collateral Consequences, 49 U.
RICH. L. REV. 1139, 1169–70 (2015)
(criticizing Scott for inattentiveness to collateral consequences); Russell L. Christopher,
Penalizing and Chilling an Indigent’s Exercise of the Right to Appointed Counsel for
Misdemeanors, 99 I
OWA L. REV. 1905, 1908 (2014) (“Scott[’s] ‘actual imprisonment’
standard may unconstitutionally penalize and chill an indigent’s exercise of the
right to appointed counsel.”); John D. King, Beyond “Life and Liberty”: The Evolving
Right to Counsel, 48 H
ARV. C.R.-C.L. L. REV. 1, 16 (2013) (“[E]ven assuming Scott
made sense when it was decided, its analytical framework no longer stands up.”);
John P. Gross, What Matters More: A Day in Jail or a Criminal Conviction?, 22 W
M. &
MARY BILL RTS. J. 55, 87 (2013) (arguing that Scott should be overruled); Alice
Clapman, Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to
Counsel for Noncitizen Defendants Facing Deportation, 33 C
ARDOZO L. REV. 585, 602
(2011) (criticizing Scott’s “false binary between incarceration . . . and mere fines”);
Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Criminal
Courts, 45 U.C.
DAVIS L. REV. 277, 333 (2011); Paul Marcus, Why the United States
Supreme Court Got Some (But Not a Lot) of the Sixth Amendment Right to Counsel
Analysis Right, 21 S
T. THOMAS L. REV. 142, 189 (2009) (“Scott was wrongly decided
and the Constitution truly does mandate counsel in all criminal cases.”); Rinat
Kitai, What Remains Necessary Following Alabama v. Shelton to Fulfill the Right of a
Criminal Defendant to Counsel at the Expense of the State?, 30 O
HIO N.U. L. REV. 35,
36 (2004) (“The thesis of this article . . . is that the right to appointment of counsel
should be extended to all criminal defendants . . . .”). A small number of scholars
defend Scott. See B
ENJAMIN H. BARTON & STEPHANOS BIBAS, REBOOTING JUSTICE:
MORE TECHNOLOGY, FEWER LAWYERS, AND THE FUTURE OF LAW 40–41, 104–05
(2017) (“There is little evidence that lawyers make much of a difference in simple,
nonjury cases.”); Erica J. Hashimoto, The Price of Misdemeanor Representation, 49
W
M. & MARY L. REV. 461, 477, 496 (2006) (arguing that the appointment of counsel
is not that important in low-level misdemeanor cases and advising states to
“change [relevant state-law] rule[s] so that counsel is appointed only when the
defendant has a constitutional right to that appointment”).
9. 372 U.S. 335 (1963).
10. Id. at 344; see, e.g., Buskey & Lucas, supra note 8, at 2303 (calling Scott the
“anti-Gideon”); Kitai, supra note 8, at 58 (expressing a hope that “Scott v. Illinois is
merely a way-station, a pause in the evolution of the right to appointed counsel”
No. 3] Sixth Amendment Federalism 651
This Article takes a different approach, focusing on the im-
portant role of the States in defining and actualizing the right
to counsel in misdemeanor cases. This important topic, which
affects millions of Americans every year, has received surpris-
ingly little attention from academics.
11
This Article thus serves
an important descriptive function and takes a fresh analytical
approach to the challenge of improving our nation’s misde-
meanor justice system. Instead of advocating that the Supreme
Court force a one-size-fits-all solution on the States by mandat-
ing appointed counsel in all criminal cases, this Article endorses
a federalist approach to the issue. But it does not extoll the sta-
tus quo. Instead, this Article champions a “better federalism”
in the area of misdemeanor justice, whereby states try out bold
and innovative solutions, breaking free of the inertia that some-
times robs federalism of its full potential.
Part I reviews existing federal law, documenting how the
Supreme Court left the States some room to define the scope of
the right to appointed counsel. After describing the typical
misdemeanor proceeding, Part II surveys the laws of each state
on the right to appointed counsel and explores how they ar-
rived at them, providing the first detailed account of state law
in this area. In summary, thirty-four states guarantee a broader
right to appointed counsel than required by Scott. Among the
thirty-four states with a broader right, the state legislatures,
rules committees, and judiciaries have all played important
roles. But the state legislatures have had the most impact, act-
ing as the first mover in expanding the right to appointed
counsel in twenty-one of the thirty-four states.
Part III considers the legal and policy arguments for and
against a broader right to appointed counsel. Part III.A considers
whether existing law is legally correct. Challenging the ortho-
(quoting Lawrence Herman & Charles A. Thompson, Scott v. Illinois and the Right
to Counsel: A Decision in Search of a Doctrine?, 17 A
M. CRIM. L. REV. 71, 117 (1979))
(internal quotation marks omitted)).
11. I am aware of only one scholar who has written an article focusing on the
state-law aspect of the right to counsel. See B. Mitchell Simpson, III, A Fair Trial:
Are Indigents Charged with Misdemeanors Entitled to Court Appointed Counsel?, 5
R
OGER WILLIAMS U. L. REV. 417 (2000). However, it is outdated, provides little
detail on how—or why—states took the paths they did, and offers a limited pre-
scriptive vision. Other scholars have mentioned the existence of broader state-law
rights, but they usually used the States as evidence to argue that it would not be
too costly for the U.S. Supreme Court to impose a uniform solution on the States.
See, e.g., Buskey & Lucas, supra note 8, at 2325.
652 Harvard Journal of Law & Public Policy [Vol. 43
dox view among scholars, it argues that Scott was correctly de-
cided: the Federal Constitution does not guarantee the right to
appointed counsel in all criminal cases. It also notes that the
case for a broader right to appointed counsel is stronger under
some state constitutions.
12
Of course, the courts are not the only
government actors that define rights, and thus Part III.B turns
to the question of whether it is good public policy to provide
counsel in a broader range of cases than the U.S. Supreme
Court requires. This Article argues there is no one-size-fits-all
answer, recognizing that the optimal approach for a state or
locality depends largely on the jurisdiction’s unique character-
istics and needs.
Above all, this Article contends that federalism is the key to
building a better misdemeanor indigent defense system, and
Part IV explains how. Part IV.A acknowledges that, on paper,
the scope of appointed counsel is a federalism success story.
States have not fit the stereotypical account that portrays them
as hostile to criminal defendants’ rights.
13
Thirty-four states
have guaranteed a broader right to appointed counsel than the
U.S. Supreme Court requires.
Still, the state of our misdemeanor indigent justice system is
troubling. Reports of routine failures to honor the existing right
to appointed counsel abound. The right of misdemeanor de-
fendants to effective appointed counsel is largely an unfunded
and unfulfilled mandate. And where the law is followed, the
dominance of uncounseled or barely counseled guilty pleas and
cookie-cutter sentences raises serious questions about whether
misdemeanor defendants are getting individualized adjudica-
tions. The fruits of federalism in this area today do not truly
warrant celebration.
Although the States bear some blame, this Article does not
echo the chorus of scholars demanding States allocate more
money to indigent defense. Instead, this Article calls on States
to try out innovative ideas for improving misdemeanor justice
in America, even going outside the traditional Anglo-American
12. Cf. JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF
AMERICAN CONSTITUTIONAL LAW 8–9 (2018) (arguing that state constitutions are
frequently overlooked by litigants as vehicles for upholding individual rights).
13. See, e.g.,
ANTHONY LEWIS, GIDEON’S TRUMPET 211–12 (1964) (“[L]egislatures,
feeling no demand from the voters, will rarely do anything about unfairness in the
administration of the criminal law except under pressure from the courts . . . .”).
No. 3] Sixth Amendment Federalism 653
adversarial system. Part IV.B suggests three approaches that
jurisdictions could take toward misdemeanors: declination, di-
version programs, and an inquisitorial model of adjudication.
The purpose of this Article is not to endorse one of those ap-
proaches, but rather to shift the conversation away from seek-
ing a one-size-fits-all solution from the U.S. Supreme Court.
Instead, we should be discussing how the States can fulfill their
potential as laboratories of democracy in this area and explore
new solutions to old problems. Because the Supreme Court did
not force a uniform solution on the States in Scott v. Illinois,
there is room for states to act as real innovators and help create
a better misdemeanor justice system in the process.
I. E
XISTING SIXTH AMENDMENT LAW ON THE RIGHT TO
APPOINTED COUNSEL
A. The Right-to-Counsel Revolution
The Sixth Amendment to the U.S. Constitution provides, “In
all criminal prosecutions, the accused shall enjoy the right . . .
to have the Assistance of Counsel for his defence.”
14
The Supreme
Court was initially slow to incorporate the Sixth Amendment
against the States. But in Powell v. Alabama,
15
a case dominated
by lynch mob dynamics in the Jim Crow-era South, the Court
held that the States must appoint counsel in capital cases under
special circumstances.
16
In a famous passage, Justice Sutherland
stated, “The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by counsel.”
17
He explained that a man “[l]eft without the aid of counsel . . .
may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible.”
18
This possibility created a severe risk
that a defendant, “though he be not guilty, [would] face[] the
danger of conviction because he does not know how to estab-
lish his innocence.”
19
14. U.S. CONST. amend. VI.
15. 287 U.S. 45 (1932).
16. Id. at 71.
17. Id. at 68–69.
18. Id. at 69.
19. Id.
654 Harvard Journal of Law & Public Policy [Vol. 43
In Gideon v. Wainwright, the Supreme Court began the “right
to counsel revolution.”
20
Justice Black’s opinion for the Court
concluded it was an “obvious truth” that a person “cannot be
assured a fair trial unless counsel is provided for him.”
21
Al-
though Gideon was initially understood to apply only to felony
cases,
22
the Court dramatically expanded the Sixth Amendment
right in Argersinger v. Hamlin.
23
Justice Douglas’s opinion ex-
tended Gideon to misdemeanors, reasoning that providing
counsel was necessary because of their large volume, which
risked an “obsession for speedy dispositions, regardless of the
fairness of the result.”
24
B. Scott v. Illinois
Although the Argersinger Court did not hold that appointed
counsel was required for all criminal cases, it expressly re-
served the question.
25
Many scholars at the time believed that
the Court would soon go the rest of the way and guarantee ap-
pointed counsel in all criminal cases.
26
But in Scott v. Illinois, the
Court drew a boundary line. Justice Rehnquist’s majority opin-
ion held that the Sixth Amendment only requires appointed
counsel when a defendant is sentenced to jail.
27
Aubrey Scott was charged with shoplifting merchandise val-
ued below $150, an offense punishable by one year’s impris-
onment and a $500 fine under Illinois law.
28
Scott was convicted
and fined $50 after a bench trial where he defended himself.
29
The state supreme court affirmed, over Scott’s argument that
the state was required to appoint counsel for him.
30
By a 5-4
vote, the Supreme Court affirmed the conviction and held that
20. See AM. BAR ASS’N, GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING
QUEST FOR EQUAL JUSTICE i, iv (2004), https://www.americanbar.org/content/dam/
aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_
counsel_in_criminal_proceedings.authcheckdam.pdf [https://perma.cc/SP4Q-AMUE].
21. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
22. Buskey & Lucas, supra note 8, at 2302–03.
23. See 407 U.S. 25, 36–37 (1972).
24. Id. at 34.
25. See id. at 37.
26. See King, supra note 8, at 13 n.82 (listing scholars who made this prediction).
27. See Scott v. Illinois, 440 U.S. 367, 373–74 (1979).
28. Id. at 368.
29. Id.
30. Id. at 368–69.
No. 3] Sixth Amendment Federalism 655
Scott was not entitled to appointed counsel because his only
punishment was a fine, not imprisonment.
31
Federalism considerations dominated Justice Rehnquist’s
opinion. The majority noted the “special difficulties” arising
from the incorporation of the Sixth Amendment against the
States because the “range of human conduct regulated by state
criminal laws is much broader than that of the federal criminal
laws, particularly on the ‘petty’ offense part of the spectrum.”
32
The Court then reasoned that “any extension would create con-
fusion and impose unpredictable, but necessarily substantial,
costs on 50 quite diverse States.”
33
As for the individual’s interest,
the Court reasoned that “actual imprisonment is a penalty dif-
ferent in kind from fines or the mere threat of imprisonment.”
34
In dissent, Justice Brennan argued that the Sixth Amendment
entitles criminal defendants to appointed counsel in any case
where they are charged with an offense for which imprison-
ment is authorized.
35
Gideon, he argued, stood for the proposi-
tion that counsel was necessary in all criminal cases to “equal-
ize the sides in an adversary criminal process” and to “give
substance to other constitutional and procedural protections
afforded criminal defendants.”
36
As for the burden on the
States, Justice Brennan deemed it “irrelevant,” reasoning that
constitutional requirements cannot depend on whether they
are difficult to implement.
37
Dissenting separately, Justice Blackmun argued for a middle
approach. He argued that the Sixth Amendment should be
understood to require the appointment of counsel in cases of
actual imprisonment and in cases where the defendant was
charged with an offense whereby he would be entitled to a jury
trial.
38
31. See id. at 373–74.
32. Id. at 372.
33. Id. at 373.
34. Id.
35. Id. at 375–76 (Brennan, J., dissenting).
36. Id. at 377.
37. See id. at 384.
38. Id. at 389–90 (Blackmun, J., dissenting).
656 Harvard Journal of Law & Public Policy [Vol. 43
C. Suspended Sentences
A divided Court later held in Alabama v. Shelton
39
that sus-
pended sentences cannot be imposed without appointing
counsel for indigent defendants. After defending himself in a
jury trial without counsel, LeReed Shelton had been convicted
of third-degree assault and had been sentenced to thirty days’
imprisonment.
40
But the judge had suspended that sentence
and imposed two years’ unsupervised probation, conditioned
on the payment of court costs, a fine, and restitution.
41
If Shelton
was accused of violating those terms, he would be entitled to a
hearing; if he was found to be in violation, the court could force
him to serve his prison sentence.
42
The Supreme Court ultimately held that this sentence was
unconstitutional because the state failed to appoint counsel.
43
Justice Ginsburg’s majority opinion reasoned that a suspended
sentence is a term of imprisonment within the meaning of
Scott.
44
Dissenting, Justice Scalia argued that Alabama’s system
was constitutional, reasoning that Scott drew a “bright line be-
tween imprisonment and the mere threat of imprisonment,”
and observing it was highly unlikely that Shelton would actually
be imprisoned.
45
Additionally, he argued that the majority’s rule
would force a burden on states, including “some of the poorest”
ones, that did not already provide counsel in cases resulting in
suspended sentences.
46
D. Using Uncounseled Convictions to Enhance Sentences
Parts I.A through C have established that there is a class of
criminal cases for which the appointment of counsel to indi-
gent defendants is not required. A separate, but conceptually
related, question concerns what a state can do with uncoun-
seled convictions. In particular, if the defendant is subsequently
charged with another offense, represented by counsel in that
latter case, and convicted, can the court use the prior uncoun-
39. 535 U.S. 654 (2002).
40. Id. at 658.
41. Id.
42. A
LA. CODE § 15-22-54 (1995).
43. Shelton, 535 U.S. at 659–60, 674.
44. See id. at 662.
45. See id. at 674–76 (Scalia, J., dissenting).
46. Id. at 679–81.
No. 3] Sixth Amendment Federalism 657
seled conviction to aggravate the defendant’s sentence in the
latter case?
Initially, the Court suggested the answer to this question was
“no” in Baldasar v. Illinois,
47
where a heavily fractured five-
Justice majority held that a defendant’s sentence cannot be en-
hanced based on a prior uncounseled conviction.
48
Dissenting,
Justice Powell argued that the Court’s decision unfairly taxed
the States’ prerogative not to provide counsel in certain cases
under Scott.
49
Fourteen years later, the Court overruled Baldasar. In Nichols
v. United States,
50
Kenneth Nichols had previously been con-
victed (without appointed counsel) of driving under the influ-
ence (DUI), for which he was fined but not incarcerated.
51
In a
subsequent prosecution for conspiracy to possess cocaine with
intent to distribute, he pleaded guilty and was assessed a crim-
inal history point for his DUI conviction, increasing his poten-
tial prison sentence by twenty-five months.
52
Relying on Baldasar,
Nichols objected to the inclusion of the DUI misdemeanor in
his criminal history score because he had not been represented
by counsel in the earlier case.
53
Chief Justice Rehnquist’s opinion for the Court overruled
Baldasar.
54
The Court reasoned that enhancement statutes “do
not change the penalty imposed for the earlier conviction,”
47. 446 U.S. 222 (1980), overruled by Nichols v. United States, 511 U.S. 738 (1994).
48. Thomas Baldasar was initially charged with a misdemeanor theft but re-
ceived an enhanced conviction as a felon and was sentenced to prison because of a
prior conviction. Id. at 223. In a brief per curiam opinion the Court reversed the
enhanced conviction “[f]or the reasons stated in the [three] concurring opinions.”
Id. at 224. The concurring opinions, however, each viewed the problem quite dif-
ferently. Justice Stewart’s brief concurrence reasoned that an uncounseled convic-
tion resulted in a deprivation of defendant’s liberty (via the enhanced sentence in
the second prosecution), so that reversal was required by Scott. See id. at 224
(Stewart, J., concurring). Justice Marshall renewed his objection to Scott, but other-
wise agreed with Justice Stewart. See id. at 224–29 (Marshall, J., concurring). Justice
Blackmun also renewed his prior objection to Scott, arguing that indigent defend-
ants should be entitled to counsel whenever charged with an offense for which at
least six months of imprisonment was authorized. Id. at 229–30 (Blackmun, J.,
concurring).
49. Id. at 230–35 (Powell, J., dissenting).
50. 511 U.S. 738.
51. Id. at 740.
52. See id.
53. See id. at 741.
54. Id. at 748.
658 Harvard Journal of Law & Public Policy [Vol. 43
thus viewing the sentence imposed on Nichols as a conse-
quence only of his second offense, and not his first one.
55
The
Court supported this move by citing the broad range of factors
that sentencing judges are allowed to consider in imposing sen-
tences, including past criminal behavior that did not result in a
conviction.
56
Justices Blackmun and Ginsburg both wrote dis-
sents.
57
The Court unanimously reaffirmed Nichols in 2016.
58
E. Summary of Sixth Amendment Law
There is a popular misconception that the Federal Constitution
guarantees the right to counsel in all criminal cases.
59
Indeed, in
the movie version of Gideon’s Trumpet, Henry Fonda (playing
Clarence Earl Gideon) stated that “Nobody is gonna go on trial
in this country ever again without a lawyer.”
60
Fonda was mis-
taken. The scope of the federal constitutional right can be help-
fully boiled down into two rules. First, an indigent criminal
defendant cannot be imprisoned unless the court appointed
constitutionally effective counsel or the defendant waived his
right. Second, a state cannot sentence an indigent criminal de-
fendant to probation, without appointing counsel or securing a
waiver, where a violation of the probation terms would result
in imprisonment.
But the Sixth Amendment right under Gideon has not been
expanded to all criminal cases. Under federal law, the States
can do the following without appointing counsel:
1. Try to convict indigent criminal defendants without ap-
pointed counsel and:
55. Id. at 747.
56. See id.
57. Id. at 754–65 (Blackmun, J., dissenting); id. at 765–66 (Ginsburg, J., dissenting).
58. In United States v. Bryant, 136 S. Ct. 1954 (2016), the Court relied on Nichols to
hold that uncounseled convictions obtained in tribal courts could be used to en-
hance the defendant’s sentence in a subsequent prosecution. Id. at 1958–59, 1965
(2016) (“Nichols’ reasoning steers the result here.”).
59. See, e.g., S
IXTH AMENDMENT CTR., ACTUAL DENIAL OF COUNSEL IN MISDE-
MEANOR
COURTS 3 (2015), https://sixthamendment.org/wp-content/uploads/2015/
05/Actual-Denial-of-Counsel-in-Misdemeanor-Courts.pdf [https://perma.cc/S6UK-
5AY9] (“The . . . Sixth Amendment prohibits federal, state and local governments
from taking the liberty of a person of limited financial means unless a competent
attorney is provided to the indigent accused . . . . This is true, even if the potential
term of incarceration is no more than a single day.”).
60. See G
IDEON’S TRUMPET (Worldvision Enterprises & Hallmark Hall of Fame
Productions 1980).
No. 3] Sixth Amendment Federalism 659
a. Impose criminal fines. The use of criminal fines
has been steadily growing.
61
For example, in 2013,
North Carolina reclassified a number of offenses
to be punishable solely by fine.
62
As another ex-
ample, Texas collected around $941,000,000 in
criminal fines in 2018.
63
States can also do this in
cases where they charge offenses for which im-
prisonment is authorized.
b. Require community service. In 2018, about 90,000
misdemeanor convicts in Texas satisfied their ob-
ligation, in full or in part, to pay a criminal fine by
performing community service.
64
c. Pursue criminal or civil forfeitures. Although the
Supreme Court has not established a clear test to
evaluate civil forfeitures,
65
many lower courts
apply a proportionality test, which tends to limit
the risk of forfeitures accompanying low-level
misdemeanors.
66
d. Impose a prison sentence but give full credit for
time served in the lead-up to the trial. This is
61. See COUNCIL OF ECON. ADVISERS, FINES, FEES, AND BAIL: PAYMENTS IN THE
CRIMINAL JUSTICE SYSTEM THAT DISPROPORTIONATELY IMPACT THE POOR 3 (2015),
http://nacmconference.org/wp-content/uploads/2014/01/1215_cea_fine_fee_bail_
issue_brief.pdf [https://perma.cc/LGY2-2MUD] (“The use of [fines] has increased
substantially over time; in 1986, 12 percent of those incarcerated were also fined,
while in 2004 this number had increased to 37 percent. When including fees as
well, the total rises to 66 percent of all prison inmates. In 2014, 44 States charged
offenders for probation and parole supervision, up from 26 in 1990.” (footnote
omitted)).
62. See C
OMM’N ON INDIGENT DEF. SERVS., REPORT OF THE COMMISSION ON INDI-
GENT
DEFENSE SERVICES 34 (2015), http://www.ncids.org/Reports%20&%20Data/
Prior%20GA%20Reports/LegislatureReport2015.pdf [https://perma.cc/4Y3P-EAAA].
63. See O
FFICE OF COURT ADMIN., supra note 7, at Detail 50.
64. Id.
65. See Timbs v. Indiana, 139 S. Ct. 682, 689 (2019) (incorporating the Excessive
Fines Clause against the States); Austin v. United States, 509 U.S. 602, 622 (1993)
(holding that civil forfeitures are limited by the Excessive Fines Clause but not
establishing a test).
66. See, e.g., Commonwealth v. Flint, 940 S.W.2d 896, 898 (Ky. 1997).
660 Harvard Journal of Law & Public Policy [Vol. 43
common in Indiana, for example.
67
At least some
state courts have upheld this practice.
68
e. In a subsequent prosecution, enhance the defend-
ant’s sentence based on such an uncounseled
conviction.
2. Charge the defendant with a crime, divert prosecution,
and negotiate probation terms, whereby a violation of the
terms would result in a criminal prosecution with the
chance to contest underlying guilt.
69
The prosecutor
could also negotiate a diversion agreement with the de-
fendant before filing charges.
70
3. Negotiate with the defendant a plea bargain that does not
result in actual or potential incarceration. For example, it
is a common practice for defendants to plead guilty in
exchange for credit for time served.
71
II. E
XISTING STATE LAW ON THE APPOINTMENT
OF COUNSEL
For some scholars, federal law is just about all that matters.
As Judge Jeffrey Sutton has recently documented, scholars, liti-
gants, and law schools have systematically ignored the role of
state law in shaping constitutional rights.
72
This trend has car-
ried over to the right-to-counsel context, where scholars have
neglected the role of state law in shaping the scope of the right
to appointed counsel, focusing instead on persuading the
Supreme Court to overrule Scott.
73
Whatever the merits of Scott,
74
the Court’s decision gave
States the opportunity to experiment with different approaches
67. See IND. TASK FORCE ON PUB. DEF., FINDINGS AND RECOMMENDATIONS TO
THE
INDIANA PUBLIC DEFENDER COMMISSION 34–35 (2018), https://www.in.gov/
publicdefender/files/Indiana%20Task%20Force%20Report.pdf [https://perma.cc/
GV2J-FP8P].
68. See, e.g., Glaze v. State, 621 S.E.2d 655, 656 (S.C. 2005) (upholding the consti-
tutional validity of an uncounseled conviction where the defendant was sen-
tenced to time served after he spent ten days in jail for failure to pay bail).
69. See Alabama v. Shelton, 535 U.S. 654, 671 (2002).
70. See id.
71. S
IXTH AMENDMENT CTR., supra note 59, at 5.
72. See S
UTTON, supra note 12, at 8–10.
73. See supra note 8 (documenting the intense and consistent hostility to Scott).
74. See infra Part III.A.1.
No. 3] Sixth Amendment Federalism 661
in this area. This Part studies what the States have done with
this opportunity. Part II.A begins by introducing a high-level,
typical account of how the States process low-level misde-
meanors. Part II.B discusses the extent to which the States have
provided a broader right to counsel under state law. In short,
thirty-four states have guaranteed a broader right to counsel
than the Supreme Court required in Scott. Sixteen states do not
guarantee broader protection, though some of them have
mechanisms in place—like the general discretionary power of a
trial judge to appoint counsel—that can result in a broader ap-
pointment of counsel in particular cases. Part II.C analyzes how
the States have arrived at their existing laws. State legislatures,
rulemakers, and courts have all played significant roles. But the
primary vehicles for broadening the scope of the right to coun-
sel in the States have been the state legislatures, not the courts.
Finally, Part II.D raises serious questions about whether these
rights are being consistently honored.
A. A Typical Misdemeanor Case
The vast majority of cases processed by the American crimi-
nal justice system are misdemeanors.
75
This label encompasses
a variety of offenses, including driving with a suspended li-
cense, disorderly conduct, drug possession, shoplifting, under-
age drinking, harassment, minor assault, vandalism, violating
the housing code, and curfew violations.
76
The prevalence of a
particular offense varies by jurisdiction. For example, as a mag-
isterial district judge in King of Prussia, Pennsylvania, ex-
plained, his court “gets a ton of business from the [King of
Prussia Mall]” because of shoplifting. In Virginia, one practi-
tioner estimated that suspended license cases may make up as
much as 40 percent of the criminal docket.
77
A justice of the
peace in Phoenix, Arizona, reported that she adjudicates a large
number of illegal hunting license cases.
78
How does our system process almost fifteen million misde-
meanors per year? This Part attempts to paint a typical picture,
75. See Natapoff, supra note 1, at 1314–15.
76. See id. at 1321.
77. See Telephone Interview with David Heilberg, Cofounder, Dygert, Wright,
Hobbs & Hernandez, PLC (Feb. 18, 2019).
78. E-mail from Cathy Riggs, Justice of the Peace, Phoenix, Arizona, to author
(Sept. 25, 2019, 3:20 PM EST) (on file with author).
662 Harvard Journal of Law & Public Policy [Vol. 43
acknowledging that there is great diversity among states and
localities. Local practice is often more important than law, so
this Article supplements traditional legal research with ac-
counts from proceedings I personally witnessed and interviews
with judges, prosecutors, and defense lawyers. A clear dis-
claimer: my evidence of local practice is anecdotal, not empiri-
cal.
79
To borrow a line from Professor Albert Alschuler, my
method is “a kind of legal journalism.”
80
This Article aspires to
survey general trends, at least well enough to provide context
for assessing the right to counsel. We can best analyze those
trends as a series of choices that jurisdictions must make in
processing low-level misdemeanors.
Once the police accuse an individual of committing an of-
fense, the first question is whether the police make an arrest or
issue a citation, a choice that is, as a matter of federal constitu-
tional law, entirely within the police officer’s discretion.
81
If the
defendant is cited, he will be given a ticket (usually resembling
a speeding ticket) with an order to appear. For more serious
misdemeanors, the police may arrest the defendant and hold
him up to forty-eight hours before a preliminary hearing.
82
The
court must then determine whether to require bail, which
many poor defendants cannot afford to pay.
83
Thus, if the court
assesses bail, the defendant may remain detained until trial
79. I spoke with at least two practitioners each from Pennsylvania, Virginia,
Iowa, Kentucky, Florida, Ohio, Arizona, Indiana, and Texas. These states are in-
tended to roughly approximate the diversity of state-law approaches to misde-
meanor indigent defense.
80. See Albert W. Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84
Y
ALE L.J. 1179, 1181 (1975) (outlining a methodology for documenting plea bar-
gaining practice).
81. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (provided the of-
ficer has “probable cause to believe an individual has committed even a very minor
criminal offense in his presence”).
82. See County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991).
83. See R
OBERT C. BORUCHOWITZ, MALIA N. BRINK & MAUREEN DIMINO, NAT’L
ASS’N OF CRIMINAL DEF. LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE
TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS 32–33 (2009), https://
www.nacdl.org/getattachment/20b7a219-b631-48b7-b34a-2d1cb758bdb4/minor-
crimes-massive-waste-the-terrible-toll-of-america-s-broken-misdemeanor-courts.pdf
[https://perma.cc/Q43S-G8FX].
No. 3] Sixth Amendment Federalism 663
(which could take a year or longer) or until he pleads guilty,
84
which is far more likely.
Second, the States must decide which courts, and which
judges, will try misdemeanor defendants. Although some states,
like California, adjudicate misdemeanors in the same trial
courts that try felonies, most states have split their trial courts
so that one set of courts adjudicates more serious cases, and the
other handles low-level criminal cases.
85
In Pennsylvania, for
example, the Court of Common Pleas is the general trial court
that adjudicates some misdemeanors and all felonies, but the
Magisterial District Courts adjudicate summary-level offenses,
those for which state law authorizes ninety days of prison or
less.
86
Magisterial district judges do not need to be lawyers, but
they do need to pass a qualifying exam.
87
Although criminal
defendants may appeal a decision by a magisterial district
judge and receive a de novo trial at the Court of Common
Pleas, multiple judges have told me that appeals are very rare.
88
Indeed, de novo appeals for misdemeanors are widely availa-
ble throughout the country, but statistical evidence suggests
these appeals are extremely rare.
89
As was true in Scott itself,
the defendant will sometimes be entitled to a jury trial, but not
appointed counsel.
90
84. A Kentucky judge estimated that it may take over a year to get a trial date in
Jefferson County, Kentucky. See Telephone Interview with Sara Nicholson, Dist.
Judge, Jefferson County, Kentucky (Mar. 22, 2019).
85. See State Court Structure Charts, C
T. STAT. PROJECT, http://www.courtstatistics.org/
Other-Pages/State_Court_Structure_Charts.aspx [https://perma.cc/2KSM-ZS45] (last
visited Feb. 17, 2020).
86. Pennsylvania Court Structure, P
ENNSYLVANIANS FOR MODERN CTS., https://
www.pmconline.org/resources/pennsylvania-court-structure [https://perma.cc/
4JQ5-Z3BX] (last visited Feb. 11, 2020).
87. See Learn, U
NIFIED JUD. SYS. PA., http://www.pacourts.us/learn/ [https://
perma.cc/GAR7-5LV9] (last visited Feb. 11, 2020).
88. See Telephone Interview with Albert Masland, Court of Common Pleas
Judge, Cumberland County, Pennsylvania (Mar. 1, 2019); Telephone Interview
with Jonathan Birbeck, Magisterial Dist. Judge, Cumberland County, Pennsylvania
(Mar. 4, 2019).
89. Nancy J. King & Michael Heise, Misdemeanor Appeals, 99 B.U.
L. REV. 1933,
1939–41 (2019).
90. See Scott v. Illinois, 440 U.S. 367, 368, 373–74 (1979) (“We therefore hold that
the Sixth and Fourteenth Amendments to the United States Constitution require
only that no indigent criminal defendant be sentenced to a term of imprisonment
unless the State has afforded him the right to assistance of appointed counsel in
his defense.”); Baldwin v. New York, 399 U.S. 66, 69 (1970) (“[W]e have concluded
664 Harvard Journal of Law & Public Policy [Vol. 43
The third key decision is whether the court requires a prelim-
inary hearing or just goes straight to trial. In Kentucky, low-
level misdemeanor defendants appear at a preliminary hear-
ing.
91
If the judge finds probable cause, the case will be sched-
uled for trial.
92
In jurisdictions that allow guilty pleas at first
appearances, the vast majority of misdemeanor defendants
plead guilty at them. In Florida, judges often offer a sentence in
exchange for a guilty plea, and most defendants take the offer
and waive their right to counsel.
93
One Florida defense lawyer
described these proceedings as “cattle calls,” explaining that
prosecutors and defendants sometimes strike deals before the
judge even arrives.
94
In Columbus, Ohio, a trial judge estimated
that over 99 percent of misdemeanor defendants plead guilty,
usually at the first appearance.
95
In Jefferson County, Kentucky,
the norm is for plea bargains to happen after the preliminary
hearing, and after the public defender has been appointed.
96
Other states proceed to trial more quickly. For example, in most
Pennsylvania counties, those charged with low-level misde-
meanors usually make their first appearance at the trial itself.
97
The fourth decision is the subject of this Article: whether to
appoint counsel or not. As discussed in Part II.B, there is a tre-
mendous diversity of approaches among the States.
that no offense can be deemed ‘petty’ for purposes of the right to trial by jury
where imprisonment for more than six months is authorized.”).
91. See K
Y. R. CRIM. P. 3.07.
92. See K
Y. R. CRIM. P. 3.14(1); Telephone Interview with Sara Nicholson, supra
note 84.
93. See Telephone Interview with L.E. Hutton, Chief Assistant State Attorney,
Office of the State Attorney for the Fourth Judicial Circuit of Fla. (Mar. 29, 2019).
94. See Telephone Interview with Scott L. Richardson, Attorney, Law Offices of
Scott L. Richardson (Mar. 29, 2019); see also A
LISA SMITH & SEAN MADDAN, NAT’L
ASS’N OF CRIMINAL DEF. LAWYERS, THREE-MINUTE JUSTICE: HASTE AND WASTE IN
FLORIDA’S MISDEMEANOR COURTS 15 (2011), https://nacdl.org/getattachment/
eb3f8d52-d844-487c-bbf2-5090f5ca4be3/three-minute-justice-haste-and-waste-in-
florida-s-misdemeanor-courts.pdf [https://perma.cc/QCP7-N5ZZ].
95. Telephone Interview with Richard Frye, Court of Common Pleas Judge,
Franklin County, Ohio (Oct. 4, 2019).
96. See Telephone Interview with Sara Nicholson, supra note 84.
97. See A
DMIN. OFFICE OF PA. COURTS, 2013 CASELOAD STATISTICS OF THE UNITED
JUDICIAL SYSTEM OF PENNSYLVANIA 124 (2014), http://www.pacourts.us/assets/files/
setting-768/file-3597.pdf?cb=08138b [https://perma.cc/34VX-FU5V]; E-mail from
Jonathan Birbeck, Magisterial Dist. Judge, Cumberland County, Pennsylvania, to
author (Jan. 29, 2020, 11:06 AM EST) (on file with author).
No. 3] Sixth Amendment Federalism 665
Fifth, jurisdictions have varying approaches to pleading and
plea bargaining. A few trends have emerged from my conver-
sations with judges and practitioners. In all jurisdictions, open
guilty pleas (that is, not bargained pleas) are common. For ex-
ample, an Ohio trial judge estimated that most misdemeanor
defendants plead guilty right away and are happy to walk
away with a small fine or a few days in jail.
98
Further, in juris-
dictions that do not appoint counsel, there is a relatively high
number of trials. Judges in two jurisdictions that do not ap-
point counsel in large numbers of misdemeanor cases have es-
timated a trial rate of 20 to 30 percent.
99
Several judges have
noted that defendants often do not have much to lose in taking
a trial, because the result (a minor fine) would usually be about
the same as if they just pleaded guilty. Or, as one judge in
Virginia explained, some defendants just want to tell their
story.
100
Finally, in states that appoint counsel for all jailable
offenses, negotiated pleas are much more common for low-
level misdemeanors. An Iowa magistrate judge explained that
plea bargains became more common after the Iowa Supreme
Court expanded the right, and that negotiated diversion (rather
than a guilty plea with a conviction) became more frequent.
101
A Kentucky judge estimated that about 95 percent of her low-
level criminal cases were terminated by a plea bargain that was
struck after a lawyer was appointed at the preliminary appear-
ance, explaining that the public defenders knew which “cookie-
cutter deal” was expected.
102
Sixth, for the misdemeanor cases that make it to trial, juris-
dictions have different trial realities. In the jurisdictions that do
not appoint lawyers for low-level misdemeanors, informal
bench trials are relatively common.
103
Based on personal obser-
98. Telephone Interview with Richard Frye, supra note 95.
99. See Telephone Interview with Jonathan Birbeck, supra note 88; Telephone
Interview with Robert Downer, Dist. Judge, Va. Sixteenth Judicial Dist. (Mar. 4, 2019).
100. See Telephone Interview with Robert Downer, supra note 99.
101. Telephone Interview with Lynn Rose, Magistrate Judge, Iowa Sixth Dist.
(Mar. 1, 2018).
102. Telephone Interview with Sara Nicholson, supra note 84.
103. See, e.g., E-mail from Cathy Riggs, supra note 78. Some states give jury trials
at the first misdemeanor trial. See, e.g., Colleen P. Murphy, The Narrowing of the
Entitlement to Criminal Jury Trial, 1997 W
IS. L. REV. 133, 171–73. But many states do
not. Although most states theoretically guarantee jury trials in a broader range of
misdemeanors than required by the Supreme Court, some of those states only
provide a jury trial when an appeal is taken. See, e.g., G
A. UNIF. MUN. CT. R. 22.2;
666 Harvard Journal of Law & Public Policy [Vol. 43
vations and conversations with practitioners, these bench trials
are informal and often resemble administrative proceedings. In
many of these cases, the judge will dismiss the case, especially
if the defendant admits responsibility and promises not to of-
fend again.
104
Cases involving dismissal are generally the most
informal, but those resulting in convictions oftentimes are in-
formal too. Some classic procedural protections, like requiring
the prosecution to prove guilt beyond a reasonable doubt,
105
are
often insisted upon. But judges in multiple states recounted
taking a more inquisitorial role. The judge dominates the pro-
ceeding by asking questions, though she will usually let the
defendant tell his story however he wants, even if, as one Virginia
judge explained, “the defendant hangs himself by admitting”
he committed the crime.
106
Several judges in different states
also confirmed that they will uphold the hearsay rules against
the prosecution because unrepresented defendants cannot be
expected to understand the rules.
107
As for the prosecution,
some states rely on police officers to present the government’s
case or answer questions from the judge.
108
The officer will often
bring the key witness to testify or, especially in shoplifting cases,
Maryland, CT. STATS. PROJECT, http://www.courtstatistics.org/Other-Pages/State_
Court_Structure_Charts/Maryland.aspx [https://perma.cc/BNX6-JG5T] (last visited
Feb. 17, 2020). States are more likely to provide jury trials for more serious accusa-
tions, like DUI, than less serious ones, like criminal speeding. See E-mail from
Cathy Riggs, supra note 78 (explaining that jury trials in Phoenix are most preva-
lent for DUI, but that bench trials are generally given for criminal speeding and
hunting license cases). But see State v. Denelsbeck, 137 A.3d 462, 476–77 (N.J. 2016)
(holding that a jury trial is not required until third or subsequent DUI cases).
104. I saw dismissals in a solid majority of the misdemeanor adjudications I
witnessed. There is statistical evidence showing that dismissal is common in mis-
demeanor adjudications, at least in some states. In 2018, Texas had around 1.1
million non-traffic misdemeanor cases in the justice and municipal courts where
the defendant could only be punished by fine, and thus was not entitled to ap-
pointed counsel. See O
FFICE OF COURT ADMIN., supra note 7, at Court-Level 42, 50.
Only around 54 percent of those cases resulted in convictions. Id. at Court-Level
43, 51. Astonishingly, about 40 percent of those cases resulted in dismissals, while
less than 1 percent resulted in acquittals. Id. Of the 54 percent of convictions, the
defendant did not bother to appear in court about 70 percent of the time, while
about 25 percent appeared in court to plead guilty; only about 4 percent were
formally found guilty by a judge or jury. Id. at Court-Level 44, 51.
105. See In re Winship, 397 U.S. 358, 364 (1970).
106. See Telephone Interview with Robert Downer, supra note 99.
107. See, e.g., Telephone Interview with Lynn Rose, supra note 101.
108. See Alexandra Natapoff, Opinion, When the Police Become Prosecutors, N.Y.
TIMES (Dec. 26, 2018), https://nyti.ms/2GIqV1S [https://perma.cc/LP78-CMQ7].
No. 3] Sixth Amendment Federalism 667
a video recording of the defendant.
109
Prosecutors are only
sometimes involved.
Seventh, jurisdictions take a variety of approaches to sen-
tencing in low-level misdemeanor cases. In the jurisdictions
that do not appoint counsel, a judge’s sentencing options are
limited. A jail sentence is off the table.
110
Empirical research
confirms that some states are increasingly turning to fines
instead of incarceration for misdemeanors, perhaps because
states would rather make money than spend it.
111
Illustrating
this fact, Texas collected around $941,000,000 in criminal fines
in 2018,
112
and only about 6 percent of all misdemeanors dis-
posed of that year were even punishable by imprisonment.
113
In
jurisdictions that do appoint counsel, judges recounted a
broader variety of sentences for the small number of cases that
go to trial, with fines and short jail sentences being common.
Of course, the vast majority of low-level misdemeanors termi-
nate with an open or negotiated guilty plea, with a fine or pro-
bation being a typical sanction. Reports of prosecutors offering
credit for time served because of an inability to make bail
abound.
114
B. Overview of State-Law Approaches to the Right to Counsel
The choice to appoint counsel (or not) in misdemeanor cases
is crucial to determining how the rest of the proceeding unfolds.
It affects the rate of plea bargaining, the frequency of trials, and
109. Cf. Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police
Prosecution of Criminal Cases, 40 A
RIZ. L. REV. 1305, 1325–29 (1998) (identifying
problematic elements of prosecutions by police officers).
110. See Scott v. Illinois, 440 U.S. 367, 373–74 (1979).
111. See Alexandra Natapoff, Misdemeanor Decriminalization, 68 V
AND. L. REV.
1055, 1099 (2015) (“As government budgets shrink around the country, lower
criminal courts are being reconceptualized and repurposed as revenue sources.”).
112. See O
FFICE OF COURT ADMIN., supra note 7, at Detail 50.
113. Compare id. at Statewide 22 (showing the number of fine-only misdemeanors
disposed of in 2018), with id. at Statewide 14 (showing the number of total new
misdemeanors filed in 2018).
114. See id. at Detail 50 (showing that fines in Texas misdemeanor cases were
waived as satisfied by “jail credit” over 532,000 times in 2018); S
IXTH AMENDMENT
CTR., supra note 59, at 5 (“If a defendant is unable to make bail and remains in jail
prior to his next court date, prosecutors may offer the defendant a chance to get
out of jail for time served if the accused simply pleads guilty. Of course, the de-
fendant may jump at the opportunity to get out of jail.”).
668 Harvard Journal of Law & Public Policy [Vol. 43
permissible sentences. This Part studies the laws of the fifty
States on the appointment of counsel in misdemeanor cases.
There is a substantial diversity of practice among the States.
Thirty-four provide protection that is broader than what the
Supreme Court mandated in Scott, though they do so to vary-
ing extents.
115
Twenty-seven states guarantee less protection
than Justice Brennan’s Scott dissent would have mandated, in-
cluding sixteen that do not guarantee a right to counsel beyond
Scott’s requirement, though judges in these states have varying
amounts of discretionary power to appoint counsel.
116
Two of
those sixteen states offer broader protection than Nichols, re-
stricting their use of uncounseled convictions to enhance sub-
sequent sentences.
117
It will be useful to categorize the various approaches. There
are undoubtedly multiple ways to carve up state practices, and
each state’s practice in this area is unique. That being said, here
are the approaches, ordered from most to least generous.
115. See infra Part II.B.1–4.
116. See infra Part II.B.3–6.
117. See infra Part II.B.6.
No. 3] Sixth Amendment Federalism 669
TABLE 1: STATE APPROACHES TO RIGHT TO APPOINTED COUNSEL IN
M
ISDEMEANOR CASES
APPROACH TO APPOINTED
COUNSEL
STATES
Provide appointed counsel in
all criminal cases, even when
a defendant is charged with a
non-
j
ailable offense
Five states: California, Delaware,
Indiana, New York, and Oregon
Provide appointed counsel in
criminal cases when the de-
fendant is charged with a
crime for which imprison-
ment is authorized, which is
Justice Brennan’s approach
Eig
h
teen states: Alaska, Colorado,
Georgia, Hawaii, Idaho, Iowa,
Kentucky, Louisiana,
Massachusetts, Nebraska, New
Hampshire, Oklahoma, Tennessee,
Texas, Utah, Washington, West
Vir
g
inia, and Wisconsin
Provide appointed counsel in
criminal cases where the de-
fendant is charged with a
crime for which a certain
amount of imprisonment is
authorized (for example,
lon
g
er than six months)
Eight states: Maine, Maryland,
Nevada, New Mexico, Ohio,
Pennsylvania, Rhode Island, and
South Dakota
Provide counsel in criminal
cases when the defendant is
charged with a crime for
which a sufficiently serious
fine is authorized or im
p
osed
Three states: New Jersey, North
Carolina, and Vermont
Do not guarantee more pro-
tection than is required by
Scott or Nichols
Fourteen states: Alabama,
Arizona, Arkansas, Connecticut,
Illinois, Kansas, Michigan,
Minnesota, Mississippi, Missouri,
Montana, South Carolina,
Vir
g
inia, and W
y
omin
g
Do not guarantee more ap-
pointed counsel than Scott
requires, but do not use un-
counseled convictions to
enhance sentences in some
situations
Two states: Florida and North
Dakota
The map below illustrates the approaches by state.
670 Harvard Journal of Law & Public Policy [Vol. 43
F
IGURE
1:
S
TATE
P
ROTECTIONS
B
EYOND
S
COTT
1. Providing Counsel in All Criminal Cases
Five states guarantee appointed counsel in all criminal cases:
California,
118
Delaware,
119
Indiana,
120
New York,
121
and Oregon.
122
These states guarantee appointed counsel even in cases charg-
118. See, e.g., Tracy v. Mun. Court, 587 P.2d 227, 228, 230 (Cal. 1978) (en banc).
Because counsel is not guaranteed for “infractions” under California law, id. at
229–30, California does not go as far as it theoretically could.
119. See D
EL
.
C
ODE
A
NN
. tit. 29, § 4602 (2020) (“The Office of Defense Services shall
represent, without charge, each indigent person who is under arrest or charged
with a crime, if . . . [t]he defendant requests it [or] [t]he court . . . so orders . . . .”).
120. See Bolkovac v. State, 98 N.E.2d 250, 253 (Ind. 1951) (“Since § 13 of Article 1
[of the Indiana Constitution] makes no distinction between misdemeanors and
felonies, the right to counsel must and does exist in misdemeanor cases to the
same extent and under the same rules it exists in felony cases.”); Brunson v. State,
394 N.E.2d 229, 231 (Ind. Ct. App. 1979).
121. See N.Y.
C
RIM
.
P
ROC
.
L
AW
§ 170.10(3)(c) (McKinney 2020); see also People v.
Ross, 493 N.E.2d 917, 919 (N.Y. 1986) (interpreting the statute to require the ap-
pointment of counsel in all criminal cases).
122. See Brown v. Multnomah Cty. Dist. Court, 570 P.2d 52, 61 (Or. 1977) (en
banc) (“Oregon has long provided court-appointed counsel for indigent defend-
ants in criminal prosecutions. Traffic crimes are no exception.” (citation omitted)).
Provide counsel in all criminal cases
Provide counsel to all defendants charged with an offense punishable by incarceration
Provide counsel to all defendants charged with an offense authorizing a certain amount of imprisonment
Provide counsel to all defendants charged with an offense authorizing a sufficiently serious fine
Do not guarantee more protection that Scott
Follow Scott, but not Nichols
No. 3] Sixth Amendment Federalism 671
ing one of the many crimes for which the only punishment is a
fine. For example, in Tracy v. Municipal Court,
123
the defendants
were charged in California with the possession of less than one
ounce of marijuana; at the time, the maximum penalty under
state law was a $100 fine.
124
Nevertheless, the court concluded
that appointed counsel was required.
125
Because the California
Supreme Court had long recognized a state constitutional right
to appointed counsel in all criminal cases,
126
the court affirmed
the defendants’ right to appointed counsel.
127
One problem that states in this category confront is the blur-
riness of the line between “crimes” and mere regulatory infrac-
tions, like some traffic offenses. Sometimes the line is clear. For
example, an ordinary parking violation is not a criminal of-
fense. But driving while intoxicated or at 125 miles per hour
could easily result in criminal charges. As for traffic offenses
that plausibly fall on either side of the line, jurisdictions make
different choices. For example, a person charged with driving
without a license in New York was guaranteed appointed
counsel because New York classified that offense as criminal,
even though it was not a jailable offense.
128
In other states, driv-
ing with a suspended license is a mere traffic infraction, not a
crime.
2. Adopting the Authorized Imprisonment Test
In addition to the five states in the previous Part, eighteen
more guarantee appointed counsel to indigent defendants
charged with jailable offenses. In other words, they adopted
the approach advocated by Justice Brennan’s Scott dissent.
129
123. 587 P.2d 227.
124. See id. at 228.
125. Id. at 228, 230.
126. In re Johnson, 398 P.2d 420, 422 (Cal. 1965) (en banc) (stating that the right
to appointed counsel “is, in California at least, not limited to felony cases but is
equally guaranteed to persons charged with misdemeanors in a municipal or other
inferior court”).
127. Tracy, 587 P.2d at 228, 230.
128. See People v. Ross, 493 N.E.2d 917, 919 (N.Y. 1986).
129. Scott v. Illinois, 440 U.S. 367, 375–76 (1979) (Brennan, J., dissenting).
672 Harvard Journal of Law & Public Policy [Vol. 43
These states are Alaska,
130
Colorado,
131
Georgia,
132
Hawaii,
133
Idaho,
134
Iowa,
135
Kentucky,
136
Louisiana,
137
Massachusetts,
138
Nebraska,
139
New Hampshire,
140
Oklahoma,
141
Tennessee,
142
Texas,
143
Utah,
144
Washington,
145
West Virginia,
146
and
Wisconsin.
147
130. See Alexander v. City of Anchorage, 490 P.2d 910, 913 (Alaska 1971) (recog-
nizing right to counsel under state constitution in all cases in which imprisonment
or hefty fines are authorized).
131. C
OLO. REV. STAT. § 13-10-114.5 (2020) (stating the court shall appoint coun-
sel if “the charged offense includes a possible sentence of incarceration”).
132. G
A. CODE ANN. §§ 17-12-1(c), -2(6)(A) (2020).
133. See State v. Dowler, 909 P.2d 574, 577 (Haw. Ct. App. 1995).
134. I
DAHO CODE § 19-851 to -852 (2020) (recognizing right to counsel in all “se-
rious” cases, defined to include all cases in which imprisonment is authorized,
regardless of whether actually imposed).
135. State v. Young, 863 N.W.2d 249, 281 (Iowa 2015).
136. K
Y. REV. STAT. ANN. §§ 31.100(8), .110 (West 2020) (recognizing right to
counsel for all “serious” offenses and defining term to include all offenses for
which imprisonment is authorized).
137. State v. Fraychineaud, 620 So. 2d 338, 340 (La. Ct. App. 1993).
138. M
ASS. GEN. LAWS ANN. ch. 211D, §§ 2B, 5 (West 2020) (triggering the pro-
cedures for appointing counsel when the defendant is charged with an offense for
which imprisonment may be imposed); Commonwealth v. Faherty, 99 N.E.3d 821,
825 (Mass. App. Ct. 2018) (explaining that counsel does not need to be appointed
for offenses like disorderly conduct and shoplifting, for which the maximum pen-
alty for the first offense is a fine only).
139. N
EB. REV. STAT. ANN. § 29-3903 (LexisNexis 2020).
140. N.H.
REV. STAT. ANN. §§ 604-A:2, 625:9 (2020) (requiring the appointment
of counsel for all class A misdemeanors, which are defined to include all offenses
for which imprisonment is authorized).
141. O
KLA. STAT. ANN. tit. 22, § 1355.6 (West 2020) (requiring appointed counsel
for all misdemeanor and traffic cases for which imprisonment is authorized).
142. T
ENN. CODE ANN. § 40-14-102 (2020); State v. Wenzler, No. W2011-00873-
CCA-R3-CD, 2013 WL 865333, at 3*–4 (Tenn. Crim. App. Mar. 6, 2013) (interpret-
ing Tennessee Rule of Criminal Procedure 44(a) to require appointed counsel for
defendants charged with an offense for which imprisonment is authorized).
143. T
EX. CODE CRIM. PROC. ANN. art. 26.04(b)(3) (West 2019).
144. U
TAH CODE ANN. § 78B-22-201(1)(a) (West 2020) (requiring the appoint-
ment of counsel only if there is “the possibility of incarceration regardless of
whether actually imposed”).
145. W
ASH. SUP. CT. CRIM. R. 3.1(a).
146. W.
VA. CODE ANN. § 50-4-3 (West 2020).
147. W
IS. STAT. ANN. § 967.06 (West 2020).
No. 3] Sixth Amendment Federalism 673
3. Providing Counsel to Defendants Charged with Offenses
Allowing Sufficient Lengths of Authorized Incarceration
In his Scott dissent, Justice Blackmun suggested the Sixth
Amendment should be understood to require the appointment
of counsel to defendants charged with an offense for which
they would be entitled to a jury trial, that is, offenses punisha-
ble by at least six months of imprisonment.
148
Eight states—
Maine,
149
Maryland,
150
Nevada,
151
New Mexico,
152
Ohio,
153
Pennsylvania,
154
Rhode Island,
155
and South Dakota
156
—have
adopted some variant of this approach, thus offering more pro-
tection than Scott requires. In other words, these states condi-
tion the availability of counsel on the type of offense rather than
the type of punishment ultimately imposed.
The states in this category sit along a spectrum. At the gener-
ous end, South Dakota guarantees counsel when a defendant is
charged with an offense for which more than thirty days of im-
prisonment or more than a five-hundred-dollar fine are author-
ized.
157
Even in cases charging thirty days’ of imprisonment or
less, the judge must, at arraignment, state on the record to the
defendant that he will not be sentenced to prison if found
guilty.
158
The statement must also precede an uncounseled plea.
159
148. Scott v. Illinois, 440 U.S. 367, 389–90 (1979) (Blackmun, J., dissenting).
149. M
E. CONST. art. I, § 6; ME. REV. STAT. ANN. tit. 15, § 810 (2019); ME. R. UNIF.
CRIM. P. 44(a)(1). The Maine Supreme Court recently used language suggesting
that the right to appointed counsel in Maine may be narrower than this Article
suggests. See State v. Lipski, 217 A.3d 727, 729 (Me. 2019) (“When a defendant’s
liberty is not at stake . . . there is no constitutional requirement that counsel be
provided by the State.”). Because that case involved a crime punishable by only
six months’ imprisonment, I do not interpret it to displace the statutory require-
ment that counsel be provided to defendants charged with a misdemeanor pun-
ishable by more than one year in prison.
150. M
D. CONST. DECL. OF RTS. art. 21; MD. CODE ANN., CRIM. PROC. § 16-204
(LexisNexis 2020).
151. N
EV. CONST. art. I, § 8; NEV. REV. STAT. §§ 178.397, 193.120 (2017).
152. N.M.
CONST. art. II, § 14; N.M. STAT. ANN. § 31-16-3 (2019).
153. O
HIO CONST. art. I, § 10; OHIO REV. CODE ANN. §§ 120.01 to .03 (West 2020).
154. P
A. CONST. art. I, § 9; PA. R. CRIM. P. 122(A).
155. R.I.
DIST. CT. R. CRIM. P. 44.
156. S.D.
CODIFIED LAWS § 23A-40-6.1 (2020).
157. See id. (explaining that appointed counsel is not required when defendant is
charged with Class 2 misdemeanor or petty offense); id. § 22-6-2 (defining bound-
ary between Class 1 and Class 2 misdemeanors).
158. See id. § 23A-40-6.1.
159. See id.
674 Harvard Journal of Law & Public Policy [Vol. 43
Maryland and Pennsylvania are at the middle of the spec-
trum. Pennsylvania guarantees appointed counsel for all cases
charging offenses punishable by more than ninety days’ im-
prisonment.
160
Although Pennsylvania gives its judges discre-
tion to appoint counsel, Pennsylvania trial judges have consist-
ently reported that they almost never appoint counsel in
summary offense cases.
161
Maryland has essentially the same
system, requiring counsel in cases where the defendant is
charged with an offense where more than three months of im-
prisonment or a $500 fine are authorized.
162
Additionally, four states follow Justice Blackmun’s proposed
approach, requiring the appointment of counsel to defendants
charged with crimes for which more than six months of im-
prisonment are authorized: New Mexico,
163
Nevada,
164
Ohio,
165
and Rhode Island.
166
On the spectrum’s least generous end, Maine requires the
appointment of counsel only if the defendant is charged with a
crime for which at least one year of imprisonment or more than
a $2,000 fine is authorized.
167
160. PA. R. CRIM. P. 122(A) (stating counsel must be appointed for all court cases
and all “summary cases” only “when there is a likelihood that imprisonment will
be imposed”); 18 P
A. STAT. AND CONS. STAT. ANN. § 106(c) (West 2020) (defining
“summary offense” as having maximum imprisonment of ninety days).
161. See, e.g., Telephone Interview with Albert Masland, supra note 88.
162. M
D. CODE ANN., CRIM. PROC. § 16-204 (LexisNexis 2020) (requiring the
appointment of counsel when a defendant is charged with a “serious offense”); id.
§ 16-101(h) (defining “serious offense”).
163. N.M.
STAT. ANN. § 31-16-3 (2019) (entitling defendants charged with “a
serious crime” to appointed counsel); id.
§ 31-16-2(d) (defining “serious crime” to
refer to an offense for which at least six months of imprisonment is authorized).
164. N
EV. REV. STAT. § 178.397 (2017) (granting counsel to any indigent defend-
ant “accused of a gross misdemeanor or felony”); id.
§ 193.120 (defining “gross
misdemeanor” and “felony” to exclude crimes punishable by, inter alia, less than
six months of imprisonment).
165. O
HIO R. CRIM. P. 44(A)–(B) (requiring the appointment of counsel for “seri-
ous offenses” but not “petty offenses,” so long as no sentence of imprisonment is
imposed); O
HIO R. CRIM. P. 2(C)–(D) (defining “serious” and “petty offense,” with
the line drawn at six months of imprisonment).
166. R.I.
DIST. CT. R. 44 (“If the offense charged is punishable by imprisonment
for a term of more than six months or by a fine in excess of $500, the court shall
advise the defendant of his or her right to assignment of counsel . . . .”).
167. M
E. R. UNIF. CRIM. P. 44(a)(1) (not requiring the appointment of counsel for
Class D and E crimes); Criminal Justice System, O
FF. ME. ATT’Y GEN., https://
www.maine.gov/ag/crime/criminal_justice_system.shtml
[https://perma.cc/4D9Y-
No. 3] Sixth Amendment Federalism 675
4. Providing Counsel to Defendants Based on Fine Levels
Three states tether the appointment of counsel to particular
fine amounts: New Jersey,
168
North Carolina,
169
and Vermont.
170
For example, North Carolina law requires the appointment of
counsel when a fine of “$500 or more is likely to be im-
posed.”
171
As another example, New Jersey relies on the courts
to develop standards, requiring appointed counsel in all cases
where imprisonment or “any other consequence of magnitude”
will occur upon conviction.
172
The state’s intermediate appellate
court has held that a fine of $1,800 for multiple municipal ordi-
nance violations triggers the right to counsel.
173
On the other
hand, it has also held that counsel was not required in an ille-
gal U-turn case in which a $95 fine was imposed.
174
Many other
states also effectively limit the amount of fines that can be im-
posed without appointed counsel by setting maximum fines for
low-level offenses (those for which counsel is not provided under
state law).
175
5. States Not Guaranteeing More Protection than Scott
Scott allowed federalist experimentation in providing coun-
sel beyond the actual imprisonment rule. But that ability also
implied the option not to expand the right beyond the federal
floor. Indeed, some scholars argue that states are incentivized
to pursue this option; by converting jailable offenses into finable
ones, the state can save money by not having to pay for a de-
fense lawyer and add money to its coffers from the defendant’s
GRWZ] (last visited Mar. 17, 2020) (explaining the distinction between Class C, D,
and E crimes).
168. N.J.
STAT. ANN. § 2A:158A-5.2 (West 2020).
169. N.C.
GEN. STAT. § 7A-451(a)(1) (2020) (requiring the appointment of counsel
where a fine of $500 or more or imprisonment is “likely to be imposed”).
170. V
T. R. CRIM. P. 44(a) (requiring the appointment of counsel for defendants
charged with a “serious crime”); V
T. STAT. ANN. tit. 13, § 5201(4) (2019) (defining
“serious crime” to include a crime for which imprisonment or a fine of $1000 is
imposed).
171. N.C.
GEN. STAT. § 7A-451(a)(1).
172. N.J.
STAT. ANN. § 2A:158A-5.2.
173. State v. Hermanns, 650 A.2d 360, 366 (N.J. Super. Ct. App. Div. 1994).
174. State v. Smith, 975 A.2d 523, 527–28 (N.J. Super. Ct. App. Div. 2009).
175. See, e.g., M
D. CODE ANN., CRIM. PROC. § 16-204 (LexisNexis 2020) (requiring
the appointment of counsel when a defendant is charged with a “serious of-
fense”); id. § 16-101(h)(2) (defining “serious offense” as “a misdemeanor or offense
punishable by confinement for more than 3 months or a fine of more than $500”).
676 Harvard Journal of Law & Public Policy [Vol. 43
pocket.
176
Sixteen states take this path: Alabama,
177
Arizona,
178
Arkansas,
179
Connecticut,
180
Florida,
181
Illinois,
182
Kansas,
183
Michigan,
184
Minnesota,
185
Mississippi,
186
Missouri,
187
Montana,
188
176. See, e.g., Darryl K. Brown, Decriminalization, Regulation, Privatization: A Response
to Professor Natapoff, 69 V
AND. L. REV. EN BANC 1, 7 (2016); Natapoff, supra note
111, at 1058 (“[E]liminating incarceration for misdemeanors looks like a kind of
win-win: it relieves defendants of the threat of imprisonment while saving the
state millions of dollars in defense, prosecution, and jail costs.”).
177. A
LA. R. CRIM. P. 6.1(a).
178. Campa v. Fleming, 656 P.2d 619, 621 (Ariz. Ct. App. 1982) (“[T]here is no
authority holding that Arizona has standards which are stricter in this area than
the U.S. Constitution.”). The language of Arizona Rule of Criminal Procedure 6.1
potentially suggests a broader right to counsel. A
RIZ. R. CRIM. P. 6.1(b)(1) (“An
indigent defendant is entitled to a court-appointed attorney . . . in any criminal
proceeding that may result in punishment involving a loss of liberty . . . .”). How-
ever, a practitioner I spoke with confirmed that the right to counsel only applies
when the prosecutor is seeking jail time. E-mail from Michael Kielsky, Partner,
Udall Shumway PLC, to author (May 14, 2020, 1:50 PM EST) (on file with author).
179. Calloway v. State, No. CACR00-1317, 2001 WL 651359, at *1–2 (Ark. Ct.
App. June 13, 2001).
180. C
ONN. GEN. STAT. ANN. § 51-296(a) (West 2020).
181. F
LA. R. CRIM. P. 3.111(b).
182. 725 I
LL. COMP. STAT. ANN. 5/113-3(b) (West 2020) (“In all cases, except
where the penalty is a fine only, if the court determines that the defendant is indi-
gent and desires counsel, the Public Defender shall be appointed as counsel.”).
This statute can arguably be read to condition counsel based on the authorized
penalty. It has been interpreted, however, to condition counsel on the imposed
penalty, consistent with Scott. See People v. Wigginton, No. 2-13-1036, 2015 WL
4511932, at *1–2 (Ill. App. Ct. July 27, 2015). The law in Illinois is currently unset-
tled. The Appellate Court of Illinois recently created, apparently unwittingly, an
appellate split by recognizing a right to appointed counsel in a case where the
defendant was charged with a jailable offense but merely fined. See People v.
Rogers, No. 3-18-0088, 2020 WL 2216195, at *2 (Ill. App. Ct. May 7, 2020).
183. See
KAN. STAT. ANN. § 22-4503 (West 2020); State v. Delacruz, 899 P.2d 1042,
1047 (Kan. 1995) (“Prior uncounseled misdemeanor convictions under Scott are
constitutional where no jail time is imposed.”).
184. M
ICH. CT. R. 6.610(D)(2); People v. Richert, 548 N.W.2d 924, 927 (Mich. Ct.
App. 1996) (“We find no justification to construe [the Michigan right to counsel
provision] more broadly than its federal analogue in the present context.”).
185. See M
INN. R. CRIM. P. 5.04, 23.04.
186. M
ISS. CODE ANN. § 99-15-15 (2020).
187. M
O. ANN. STAT. § 545.820 (West 2019) (requiring the appointment of coun-
sel only for felony defendants); State v. Pike, 162 S.W.3d 464, 471–72 (Mo. 2005)
(en banc) (affirming the legality of an uncounseled conviction that did not result
in incarceration under Scott); State v. Keeth, 203 S.W.3d 718, 727 (Mo. Ct. App.
2006) (“[T]he current state of the law in Missouri is that as decided in Scott.”).
188. M
ONT. CODE ANN. § 46-8-101 (West 2019); State v. Allen, 206 P.3d 951, 953
(Mont. 2009) (“Th[e] fundamental right to counsel extends only to cases in which
a sentence of imprisonment is actually imposed . . . .”).
No. 3] Sixth Amendment Federalism 677
North Dakota,
189
South Carolina,
190
Virginia,
191
and Wyoming.
192
These states face an administrability challenge, as Justice
Brennan pointed out in his dissent in Scott.
193
Judges in states
using the “actual imprisonment” standard must decide at the
start of the case whether they want the option of sentencing the
defendant to imprisonment. Of course, in jurisdictions where
guilty pleas predominate over trials, this argument has little
force. The parties can easily strike a bargain that complies with
Scott.
When a trial occurs, or is at least a realistic possibility, some
jurisdictions rely on the prosecutor to indicate whether she will
seek a prison sentence for the defendant. Minnesota, for exam-
ple, makes this expectation explicit by requiring the prosecutor
to announce ex ante that she will not seek a prison sentence in
a case, thus obviating the need for counsel.
194
In other jurisdic-
tions, there is an unwritten expectation that prosecutors will
make clear whether counsel is needed by stating an intention to
seek a prison sentence. For example, in Cumberland County,
Pennsylvania, there is a presumption that appointed counsel
will not be assigned for summary offense cases unless the
prosecutor states an intention to seek a prison sentence at the
start of the process.
195
In Phoenix, Arizona, the justices of the
peace generally appoint counsel only when the state indicates
it will seek jail time.
196
Other states allow the judge to eliminate the need to appoint
counsel in cases where the defendant is charged with an of-
fense punishable by incarceration if she formally decides before
trial that she will not sentence the defendant, if convicted, to
189. N.D. R. CRIM. P. 44(a).
190. S.C.
CODE ANN. § 17-3-10 (2014) (stating counsel shall be appointed to
“[a]ny person entitled to counsel under the Constitution of the United States”).
191. V
A. CODE ANN. § 19.2-160 (West 2020).
192. W
YO. STAT. ANN. § 7-6-102(a)(v)(A) (2020).
193. See Scott v. Illinois, 440 U.S. 367, 383 (1979) (Brennan, J., dissenting).
194. See, e.g., M
INN. R. CRIM. P. 23.04; see also Campa v. Fleming, 656 P.2d 619,
619–21 (Ariz. Ct. App. 1982) (reversing the appointment of counsel because the
prosecutor promised he would not seek a prison sentence for the defendant).
195. See Telephone Interview with Jonathan Birbeck, supra note 88.
196. E-mail from Michael Kielsky, Partner, Udall Shumway PLC, to author
(Sept. 25, 2019, 3:56 PM EST) (on file with author); E-mail from Cathy Riggs, supra
note 78.
678 Harvard Journal of Law & Public Policy [Vol. 43
prison. Connecticut,
197
Florida,
198
Montana,
199
Virginia,
200
and
Wyoming
201
have variations on this approach. For example,
Florida allows its trial judges to decline to appoint counsel, or
dismiss appointed counsel, if they file a written order taking
imprisonment off the table for the defendant at least fifteen
days before the trial.
202
The frequency with which these provi-
sions will be invoked largely depends on the individual judge.
One Florida judge said she only used it a couple of times in
about two years,
203
while a Florida prosecutor estimated it is
used in 5 to 10 percent of possible cases.
204
It is also worth not-
ing that some states that recognize a broader, but less than
complete, entitlement to appointed counsel have similar pro-
cedural requirements.
205
These states also give their trial judges varying amounts of
discretion to appoint counsel. For example, Arizona and South
Carolina explicitly give their trial judges discretion to appoint
counsel in any case.
206
Mississippi, in contrast, gives its trial
judges less discretion, allowing appointment of counsel only
when the defendant is charged with an offense for which at
least ninety days of imprisonment are authorized.
207
Similarly,
if a Montana judge declares at arraignment that the defendant
will not be imprisoned, then she lacks discretion to appoint
counsel for the defendant.
208
Whether judges will use this discretion to appoint counsel is
a different question and likely depends on local factors. For ex-
197. CONN. GEN. STAT. ANN. § 51-296(a) (West 2020).
198. F
LA. R. CRIM. P. 3.111(b)(1).
199. M
ONT. CODE ANN. § 46-8-101(3) (West 2019) (allowing the court to decline
to appoint counsel if it declares at arraignment that no term of imprisonment will
be imposed).
200. V
A. CODE ANN. § 19.2-160 (West 2020).
201. W
YO. STAT. ANN. § 7-6-102(a)(v)(A) (2020).
202. F
LA. R. CRIM. P. 3.111(b)(1).
203. See Telephone Interview with Meredith Charbula, Cty. Judge, Duval County,
Florida (Mar. 29, 2019).
204. See Telephone Interview with L.E. Hutton, supra note 93.
205. See, e.g., M
E. UNIF. R. CRIM. P. 44(a)(1); VT. STAT. ANN. tit. 13, § 5201(4)(B) (2018).
206. A
RIZ. R. CRIM. P. 6.1(b)(2) (“In any other criminal proceeding, the court
may appoint an attorney for an indigent defendant if required by the interests of
justice.”); S.C. C
ODE ANN. § 17-3-100 (2014) (recognizing that “the discretionary
authority of a judge to appoint counsel in any case” is not limited).
207. M
ISS. CODE ANN. § 99-15-15 (2020).
208. M
ONT. CODE ANN. § 46-8-101 (West 2019).
No. 3] Sixth Amendment Federalism 679
ample, trial judges in Cumberland County, Pennsylvania, rarely
use their discretion to appoint counsel in summary offense
cases.
209
In contrast, one Virginia trial judge told me that he and
at least some of his colleagues “bend over backwards” to ap-
point defense lawyers, because not having them can slow cases
down.
210
Similarly, judges in Columbus, Ohio, generally exer-
cise discretion to appoint counsel for jailable misdemeanors,
though judges in some rural counties often do not.
211
6. Following Scott but Rejecting Nichols
Two states, North Dakota and Florida, reject Nichols but fol-
low Scott.
212
In State v. Orr,
213
the North Dakota Supreme Court
highlighted the state’s historical commitment to the right to
counsel and, rejecting Nichols, it held that uncounseled convic-
tions could not be used to enhance sentences in subsequent
cases.
214
Similarly, in State v. Kelly,
215
the Florida Supreme Court
interpreted the Florida Constitution to provide more protection
than Nichols, holding that prior uncounseled convictions could
only be used to enhance a sentence in a subsequent prosecution
if the crime charged in the first case carried a potential prison
sentence of less than six months.
216
C. How the States Arrived at their Present Laws
The previous Section documented what the law among the
fifty states is. This Section focuses on how they got there. Which
actors within the states were responsible for expanding (or not)
the right to counsel? This question sheds light on the operation
of our federalist system and legal development at the state
level—issues of interest especially to those who wish to follow
209. See Telephone Interview with Jonathan Birbeck, supra note 88; Telephone
Interview with Albert Masland, supra note 88.
210. See Telephone Interview with Edward Hogshire, Judge, Charlottesville
Circuit Court (Feb. 26, 2019).
211. Telephone Interview with Richard Frye, supra note 95.
212. On the adherence to Scott, see F
LA. R. CRIM. P. 3.111; N.D. R. CRIM. P. 44(a).
213. 375 N.W.2d 171 (N.D. 1985).
214. Id. at 178–79.
215. 999 So. 2d 1029 (Fla. 2008).
216. Id. at 1053.
680 Harvard Journal of Law & Public Policy [Vol. 43
Judge Sutton’s advice to “take both shots” in asserting legal
rights.
217
This Part is divided according to the different institutions of
government that have regulated the entitlement to appointed
counsel in the several states: state legislatures, rules commit-
tees, and state courts. In the states that offer broader legal pro-
tection than Scott or Nichols, the legislature led the way in
twenty-one states, the rules committee in eight, and the judici-
ary in seven. The following map reflects these numbers:
F
IGURE 2: INSTITUTIONS THAT EXPANDED ENTITLEMENT FIRST
IN THE STATES
1. State Legislatures
The state legislatures have been active in regulating the enti-
tlement to appointed counsel. Among the thirty-six states that
recognize a broader right to counsel than Scott or Nichols re-
quire, legislatures led the way in twenty-one. These states are:
217. See S
UTTON
, supra note 12, at 7–10 (counseling lawyers to lodge challenges
on behalf of clients under both the Federal Constitution and state constitutions).
State Legislatures
Rules Committees
Judiciary-State Constitutional Interpretation
Do not guarantee more protection than Scott or Nichols
No. 3] Sixth Amendment Federalism 681
Colorado,
218
Delaware,
219
Georgia,
220
Hawaii,
221
Idaho,
222
Kentucky,
223
Maryland,
224
Nebraska,
225
Nevada,
226
New
Hampshire,
227
New Jersey,
228
New Mexico,
229
New York,
230
North Carolina,
231
Oklahoma,
232
South Dakota,
233
Texas,
234
Utah,
235
Vermont,
236
West Virginia,
237
and Wisconsin.
238
Addi-
tionally, California’s legislature codified a right previously rec-
ognized under its constitution.
239
On the other hand, the state
legislatures in seven states codified a statutory requirement
that does not guarantee more protection than Scott.
These states
are: Illinois,
240
Kansas,
241
Mississippi,
242
Missouri,
243
South
Carolina,
244
Virginia,
245
and Wyoming.
246
Most recently, the Colorado legislature passed a bill in 2016
extending the right to appointed counsel to all defendants
218. See Act of June 11, 2016, ch. 366, § 2, 2016 Colo. Sess. Laws 1540, 1540–41.
219. See Act of Jan. 7, 1964, ch. 227, § 1, 54 Del. Laws 738, 738–39.
220. See Act of May 3, 2006, no. 749, § 4(5)(A), 2006 Ga. Laws 752, 753–54.
221. See Act of May 15, 1973, act 76, § 1, 1973 Haw. Sess. Laws 101, 101–02.
222. See Act of Mar. 21, 2005, ch. 93, § 1, 2005 Idaho Sess. Laws 313, 313–14.
223. See Act of Mar. 29, 1978, ch. 155, § 27, 1978 Ky. Acts 396, 410.
224. See Act of Apr. 29, 1971, ch. 209, § 1, 1971 Md. Laws 485, 486–87.
225. See Act of Apr. 8, 1972, L.B. 1463, § 2, 1972 Neb. Laws 1295, 1296.
226. See Act of May 28, 1981, ch. 350, §§ 1–3, 1981 Nev. Stat. 651, 652.
227. See Act of June 28, 1973, ch. 370, § 23, 1973 N.H. Laws 341, 344–45.
228. See Act of May 31, 1974, ch. 33, 1974 N.J. Laws 103, 103–04.
229. See Act of Feb. 27, 1968, ch. 69, §§ 59–61, 1968 N.M. Laws 334, 355–58.
230. See Act of May 20, 1970, ch. 996, § 1, 1970 N.Y. Laws 3117, 3168.
231. See Act of June 23, 1969, ch. 1013, § 1, 1969 N.C. Sess. Laws 1154, 1154.
232. See Act of May 24, 1991, ch. 238, § 7, 1991 Okla. Sess. Laws 1688, 1694.
233. See Act of Mar. 12, 1983, 1983 S.D. Sess. Laws ch. 190 § 1 384, 385.
234. See Act of June 18, 1965, ch. 722, § 1, 1965 Tex. Gen. Laws 317, 425.
235. See Act of Feb. 1, 1980, ch. 14, § 1, 1980 Utah Laws 86, 208.
236. See Act of Apr. 17, 1995, no. 21, § 3, 1995 Vt. Acts & Resolves 67, 68–69.
237. See Act of Mar. 13, 1976, ch. 33, 1976 W. Va. Acts 186, 206–07.
238. See Act of June 30, 1977, ch. 29, § 1593, 1977 Wis. Sess. Laws 35, 412.
239. See C
AL. CONST. art. 1, § 15, cl. 3; Tracy v. Mun. Court, 587 P.2d 227, 230
(Cal. 1978) (en banc); In re Smiley, 427 P.2d 179, 184 (Cal. 1967) (“Under . . . the
California Constitution, there can be no doubt that the fundamental right to the assis-
tance of counsel is guaranteed to all persons . . . charged with a misdemeanor . . . .”).
240. See Code of Criminal Procedure of 1963, 1963 Ill. Laws 2836, 2861.
241. See Act of Apr. 18, 1969, ch. 291, § 3, 1969 Kan. Sess. Laws 786, 787.
242. See Act of Apr. 5, 1971, ch. 490, § 2, 1971 Miss. Laws 604, 604–05.
243. See M
O. REV. STAT. § 4140 (1889).
244. See Act of June 17, 1969, no. 309, § 1, 1969 S.C. Acts 374, 374–75.
245. See Act of Mar. 14, 1983, ch. 97, 1983 Va. Acts 107, 107–08.
246. See Act of Feb. 24, 1999, ch. 95, § 1, 1999 Wyo. Sess. Laws 189, 190.
682 Harvard Journal of Law & Public Policy [Vol. 43
charged with a jailable offense.
247
The bill was politicallycon-
tested, with divided votes in both houses of the state legisla-
ture.
248
Although a higher percentage of Democrats than
Republican legislators ultimately supported the bill, the bill
had bipartisan support, including the strength to make it
through the Republican-controlled state senate. During the
hearings of the House Committee on the Judiciary (which ap-
proved the bill by a 6-5 vote),
249
the opposing parties aired
some of the policy arguments surrounding this issue, which
will be explored more fully below. For example, the attorney
for the City of Fort Morgan testified that the bill would impose
unnecessary costs on rural municipalities.
250
2. Rule Promulgation
Rules committees, generally composed of judges and practi-
tioners, have regulated the right to counsel in eight states.
These states are: Iowa,
251
Maine,
252
Massachusetts,
253
Ohio,
254
Pennsylvania,
255
Rhode Island,
256
Tennessee,
257
and Washington.
258
Seven states promulgated rules that do not guarantee more
protection than Scott requires, including Alabama,
259
Arizona,
260
247. Act of June 11, 2016, ch. 366, § 2, 2016 Colo. Sess. Laws 1540, 1540–41.
248. The Colorado House of Representatives approved the bill by a 42-22-1 vote.
HB16-1309 House Vote, C
OLO. GEN. ASSEMBLY (Apr. 29, 2016, 12:45 PM), https://
leg.colorado.gov/content/hb16-1309vote6707bc [https://perma.cc/89VM-CKT8]. The
Senate approved the bill 29-6. HB16-1309 Senate Vote, C
OLO. GEN. ASSEMBLY (Apr.
26, 2016, 11:09 PM), https://leg.colorado.gov/content/hb16-1309vote5e4768 [https://
perma.cc/QB3E-X7ZC]; see also H.B. 16-1309, 69th Gen. Assemb., Reg. Sess. (Colo.
2016).
249. Hearing on H.B. 16-1309 Before the H. Comm. on Judiciary, 2016 Leg., 69th
Colo. General Assemb. (Colo. 2016).
250. Id. (statement of Jason Meyers, City Attorney for City of Fort Morgan).
251. I
OWA R. CRIM. P. 2.61(2).
252. M
E. R. CRIM. P. 44(a)(1).
253. M
ASS. R. CRIM. P. 8.
254. O
HIO R. CRIM. P. 44.
255. P
A. R. CRIM. P. 122(A).
256. R.I.
DIST. CT. R. CRIM. P. 44.
257. T
ENN. R. CRIM. P. 44(a).
258. W
ASH. SUP. CT. CRIM. R. 3.1(a).
259. A
LA. R. CRIM. P. 6.1(a).
260. A
RIZ. R. CRIM. P. 6.1(b)(1)(A).
No. 3] Sixth Amendment Federalism 683
Arkansas,
261
Florida,
262
Michigan,
263
Minnesota,
264
and North
Dakota.
265
3. State Judiciaries and State Constitutional Law
Seven states recognizing broader rights than required by
Scott or Nichols have done so through judicial interpretation of
their state constitutions. The judiciaries of Alaska,
266
California,
267
Indiana,
268
Louisiana,
269
and Oregon
270
recognized a broader
right than Scott. The Florida and North Dakota judiciaries rec-
ognized broader state constitutional rights than required by
Nichols.
271
Additionally, Iowa’s and Hawaii’s judiciaries consti-
tutionalized more generous rules first recognized by another
branch.
272
The following Parts analyze these state court decisions by fo-
cusing on the ingredients on which the state judiciaries have
relied.
a. State Constitutional Texts
Almost all state constitutions recognize the right to counsel,
but sometimes with wording quite different from the Sixth
Amendment. Some state courts have therefore relied on textual
differences to interpret the right more expansively. The Louisiana
Constitution, for example, guarantees a person the right to
court-appointed counsel “if he is indigent and charged with an
offense punishable by imprisonment,” and the state’s courts
have consequently recognized a right to appointed counsel in
261. ARK. R. CRIM. P. 8.2(a).
262. F
LA. R. CRIM. P. 3.111.
263. M
ICH. CT. R. 6.610(D)(2).
264. M
INN. R. CRIM. P. 5.04, 23.04.
265. N.D.
R. CRIM. P. 44(a).
266. Pananen v. State, 711 P.2d 528, 532 (Alaska Ct. App. 1985).
267. In re Smiley, 427 P.2d 179, 184 (Cal. 1967).
268. Bolkovac v. State, 98 N.E.2d 250, 253 (Ind. 1951).
269. State v. Haley, 538 So. 2d 679, 680 (La. Ct. App. 1989).
270. See Brown v. Multnomah Cty. Dist. Court, 570 P.2d 52, 55, 61 (Or. 1977) (en
banc).
271. See State v. Kelly, 999 So. 2d 1029, 1053 (Fla. 2008); State v. Orr, 375 N.W.2d
171, 178–79 (N.D. 1985).
272. See State v. Dowler, 909 P.2d 574, 577 (Haw. App. Ct. 1995); State v. Young,
863 N.W.2d 249, 277–78 (Iowa 2015).
684 Harvard Journal of Law & Public Policy [Vol. 43
all jailable cases.
273
The Hawaii judiciary also relied on a broader
state constitutional text to expand the right.
274
Other broader
state constitutional provisions are identified below.
275
b. State Histories
Some state judiciaries have relied on unique state histories in
defining the right to counsel. For example, in State v. Young,
276
in which the court held that the state constitution requires the
appointment of counsel to indigent defendants charged with a
jailable offense, the Iowa Supreme Court noted that the state’s
right-to-counsel provision was “hotly debated” by the framers
of the Iowa Constitution because of the controversy over the
Fugitive Slave Act.
277
As the court explained, slave removal
proceedings were civil rather than criminal, and the Iowa
framers wanted their constitution to reach broadly enough to
cover those proceedings.
278
More generally, the court said the
framers wanted Iowa to “have the best and most clearly de-
fined Bill of Rights.”
279
This history helped justify the court’s
holding that the state constitution guaranteed the right to
counsel to all defendants charged with a jailable offense.
280
c. State Precedents
The variety of precedent among the various state judicial sys-
tems is immense. This variety has doubtless influenced the dif-
ferent approaches taken by state judiciaries toward the scope of
the right to counsel.
For example, by the time the New Mexico Supreme Court
considered a Nichols-type issue in 1997, it had previously bor-
273. LA. CONST. art. I, § 13; State v. Deville, 879 So. 2d 689, 690 (La. 2004) (“In
this respect, Louisiana law provides broader protection than the Sixth Amendment
requires.”).
274. See Dowler, 909 P.2d at 577.
275. See infra Table 2.
276. 863 N.W.2d 249.
277. Id. at 278.
278. See id. at 278–79.
279. Id. at 278 (quoting State v. Baldon, 829 N.W.2d 785, 810 (Iowa 2013) (Appel,
J., specially concurring)).
280. Indeed, the Iowa Supreme Court gave a far longer discourse on the history
of this provision in a more recent case deciding when the right to counsel attaches.
See State v. Senn, 882 N.W.2d 1, 13–16 (Iowa 2016).
No. 3] Sixth Amendment Federalism 685
rowed the U.S. Supreme Court’s Mathews v. Eldridge
281
frame-
work of balancing the defendant’s right, the risk of inaccurate
deprivation of that right, and the state’s interest.
282
Thus in con-
sidering whether to bar the use of an uncounseled first-time
DUI conviction to enhance a defendant’s sentence in a subse-
quent prosecution under the state constitution, the New Mexico
Supreme Court analyzed the question under its state due pro-
cess clause, instead of a direct state-level analog to the Sixth
Amendment.
283
The court ultimately balanced the factors in the
state’s favor, concluding due process did not require appointed
counsel under the state constitution.
284
d. Different Approaches to U.S. Supreme Court Precedent
State courts often react to federal decisions in their own state-
level criminal procedure jurisprudence, including on the right
to counsel. Among the states that have not provided more pro-
tection than Scott or Nichols, some state courts have hewed
closely to the U.S. Supreme Court’s doctrinal moves.
285
After
the Court’s decision in Baldasar, several state courts expanded
the right to counsel or applied its holding under their state con-
stitutions.
286
Likewise, after the Court overruled Baldasar, sev-
eral of these states’ judiciaries reversed their post-Baldasar deci-
sions.
287
In doing so, they relied heavily on the U.S. Supreme
281. 424 U.S. 319 (1976).
282. State v. Woodruff, 951 P.2d 605, 613–14 (N.M. 1997) (citing Eldridge, 424
U.S. at 334–35).
283. Id.
284. Id. at 616.
285. See, e.g., In re Advisory Opinion to the Governor, 666 A.2d 813, 816 (R.I.
1995) (overruling earlier decision under Rhode Island Constitution guaranteeing
counsel in all cases where charged offense authorized more than six months in
prison after Scott).
286. See, e.g., State v. Oehm, 680 P.2d 309, 312 (1984), overruled by State v. Delacruz,
899 P.2d 1042 (Kan. 1995); State v. Armstrong, 332 S.E.2d 837, 840 (W. Va. 1985)
(“Under the sixth amendment of the federal constitution and article III, section 14
of the West Virginia Constitution, unless an individual convicted of a misde-
meanor was represented by counsel or knowingly and intelligently waived the
right to counsel, such prior conviction may not be used to enhance a sentence of
imprisonment for a subsequent offense.”), overruled by State v. Hopkins, 453
S.E.2d 317 (W. Va. 1994).
287. See, e.g., Delacruz, 899 P.2d at 1047 (overruling two state-law decisions
based on Baldasar and embracing the reasoning of the U.S. Supreme Court in
Nichols); State v. Porter, 671 A.2d 1280, 1282 (Vt. 1996) (overruling a decision based
on Baldasar and declining to provide broader right under Vermont Constitution, rea-
686 Harvard Journal of Law & Public Policy [Vol. 43
Court’s decisions, mostly eschewing independent state-law
reasoning.
288
State constitutional law theorists call this ap-
proach “lockstepping.”
289
Other states have been less deferential to the Supreme Court’s
reasoning. For example, in State v. Young, the Iowa Supreme
Court harshly criticized Justice Rehnquist’s “short” opinion in
Scott, accusing it of “[h]arkening back to the aberrant and over-
ruled Betts[ v. Brady].”
290
The court further criticized both Scott
and Nichols as inconsistent with earlier federal precedent, argu-
ing both “departed from the traditional Sixth Amendment reli-
ability rationale.”
291
The court then rejected the results reached
in Scott and Nichols, holding that the Iowa Constitution re-
quired the appointment of counsel in all cases involving of-
fenses for which incarceration is authorized.
292
D. The Reality on the Ground: Is the Right Being Honored?
Parts II.A through C have focused on the laws of the States
and how they got there. But anyone experienced with the crim-
inal justice system might be wondering whether these state-law
rights are worth anything. Are the States actually providing
counsel broader than what the Supreme Court requires? If they
do provide counsel, does it meet a minimum standard of com-
petence? In short, the evidence suggests some states and localities
routinely fail to fulfill their federal constitutional obligations to
provide effective counsel, or even to provide counsel at all.
293
soning that it provides a “right similar to” the Sixth Amendment); Hopkins, 453
S.E.2d at 324 (overruling a post-Baldasar decision based on West Virginia Constitution
without any independent state constitutional law reasoning), overruled on other
grounds by State v. Nichols, 541 S.E.2d 310 (W. Va. 1999).
288. For example, in State v. Delacruz, the Kansas Supreme Court acknowledged
the defendant’s argument that it was free to provide more protection than the U.S.
Supreme Court and that it should prevent unreliable convictions. Delacruz, 899
P.2d at 1046–47. But the court dodged this argument. “In response to similar
arguments,” the court block-quoted three paragraphs from Nichols, and then
summarily concluded it “agree[d] with and adopt[ed]” the U.S. Supreme Court’s
rationale. Id.
289. See, e.g., S
UTTON, supra note 12, at 174.
290. State v. Young, 863 N.W.2d 249, 267 (Iowa 2015).
291. Id. at 270.
292. Id. at 281.
293. See, e.g., Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal
Cases: Still a National Crisis?, 86 G
EO. WASH. L. REV. 1564, 1564 (2018) (“The au-
thors conclude that our patchwork system of public defense for the poor remains
disturbingly dysfunctional.”).
No. 3] Sixth Amendment Federalism 687
But first, it is worth acknowledging that some jurisdictions
honor broader state-law rights to counsel and make those rights
meaningful. Practitioners from Philadelphia, Iowa, Indianapolis,
and Kentucky insisted counsel is usually appointed for all jail-
able offenses.
294
For example, in Louisville, Kentucky, one
judge explained that indigent defendants regularly get counsel
for the lowest-level jailable offenses at their preliminary hear-
ings.
295
And although plea bargaining terminates about 95 per-
cent of the cases in her county, the judge reported that plea
bargains are not usually struck immediately before or during
the preliminary hearing, as in some other jurisdictions.
296
But that rosy picture does not extend to the entire country.
First, when jurisdictions do provide counsel, there are serious
questions about whether they are providing minimally effec-
tive counsel. Extreme caseloads spread across too few attorneys
may be the biggest problem.
297
The most recent round of statis-
tics from the Federal Bureau of Justice Statistics presents a grim
picture, with public defenders in many states forced to close
more than one case per day.
298
For example, the average Arkansas
defender reportedly closed 590 cases in 2013.
299
Similar situa-
tions exist in a large number of other states.
300
Moreover, work-
loads might even be worse in states that rely on contracts with
defense firms to handle indigent defense, because the lowest
bidding firm might get stuck with massive amounts of cases.
301
For example, one county recently contracted with a three-
person firm to handle half of its caseload for $400,000, which
294. See Telephone Interview with Sara Nicholson, supra note 84; E-mail from
Katherine Robinson, Public Defender, retired, Marion County, Indiana, to author
(Oct. 6, 2019) (on file with author); Telephone Interview with Lynn Rose, supra
note 101; Interview with David Rudovsky, Founding Partner, Kairys, Rudovsky,
Messing & Feinberg, LLP (Feb. 18, 2019).
295. See Telephone Interview with Sara Nicholson, supra note 84.
296. See id.
297. See Erica Hashimoto, Motivating Constitutional Compliance, 68 F
LA. L. REV.
1001, 1019–20 (2016).
298. S
UZANNE M. STRONG, U.S. DEP’T OF JUSTICE, STATE-ADMINISTERED INDI-
GENT
DEFENSE SYSTEMS, 2013, at 1–3 (2017), https://www.bjs.gov/content/pub/pdf/
saids13.pdf [https://perma.cc/6LB7-8AKS].
299. Id. at 5.
300. Id.
301. See B
ARTON & BIBAS, supra note 8, at 27 (“Contract attorneys have it worst
of all.”).
688 Harvard Journal of Law & Public Policy [Vol. 43
boiled down to 1,523 felonies and 3,587 misdemeanors that
year.
302
So how do defense lawyers close out multiple cases per
workday? The evidence suggests caseload pressures are help-
ing transform our criminal justice system into an assembly line
that relies on plea deals to function.
303
As Justice Kennedy noted
in Lafler v. Cooper,
304
our criminal justice system has evolved
into “a system of pleas, not a system of trials.”
305
About 95 per-
cent of cases terminate in guilty pleas.
306
And these pleas come
fast; “meet ’em and plead ’em” lawyering is increasingly com-
mon.
307
This phenomenon is likely to be particularly common
in misdemeanor cases, which are far more numerous than felo-
nies, and where indigent defendants often face a choice be-
tween waiting in jail for a trial (because they cannot afford bail)
or pleading guilty.
308
And even in jurisdictions where plea bar-
gains generally come after the preliminary hearing, there is, as
one Kentucky judge explained, a “market” for “cookie-cutter
plea deals,” raising serious questions about whether individu-
alized dispositions are achieved.
309
Additionally, serious questions exist about whether some juris-
dictions are consistently providing any counsel in misdemeanor
cases when required to do so under Argersinger or Shelton. Na-
tional statistical evidence is difficult to come by, especially be-
cause many states do not maintain records in this area.
310
But
302. See id.
303. See, e.g., State v. Miller, 76 A.3d 1250, 1269 (N.J. 2013) (Albin, J., dissenting)
(bemoaning the treatment of a defendant as “just another fungible item to be shuf-
fled along on a criminal-justice conveyor belt” with “the right to effective assis-
tance of counsel [being] nothing more than the presence of an appointed attorney
at counsel’s table”).
304. 566 U.S. 156 (2012).
305. Id. at 170.
306. Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor
to Consumer Protection, 99 C
ALIF. L. REV. 1117, 1118–19 (2011).
307. See, e.g., B
ARTON & BIBAS, supra note 8, at 28 (calling it a “common practice”
and citing examples).
308. See, e.g., id.; Jason A. Cade, The Plea-Bargain Crisis for Noncitizens in Misde-
meanor Court, 34 C
ARDOZO L. REV. 1751, 1753 (2013) (“Overwhelmingly, misde-
meanor defendants cannot make bail even where it is set at $1000 or less. In the
majority of misdemeanor cases, the defendant pleads guilty at arraignment or
soon after, the judge imposes a light, agreed upon sentence, and the defender’s
representation of the client concludes.” (footnote omitted)).
309. See Telephone Interview with Sara Nicholson, supra note 84.
310. See
SIXTH AMENDMENT CTR., supra note 59, at 7.
No. 3] Sixth Amendment Federalism 689
statewide statistics suggest the problem is serious. For exam-
ple, in Texas, a state that ostensibly guarantees appointed
counsel in all cases where the defendant is charged with a jail-
able crime, three quarters of Texan counties only appointed
counsel in fewer than 20 percent of misdemeanor cases in
2009.
311
Anecdotal accounts also abound on the failure of states
to provide any counsel in misdemeanor cases when prison or
suspended sentences are imposed.
312
A few recent examples:
1. In Tennessee, observers watched courts give many mis-
demeanor defendants suspended sentences without in-
forming them of their right to counsel.
313
2. In Utah, an eighteen-month study concluded that around
62 percent of misdemeanor defendants statewide were
not being appointed counsel.
314
3. In 2009, Chief Justice Jean Hoefer Toal of the South Carolina
Supreme Court publicly rebuked the Supreme Court’s
decision in Shelton: “Alabama v. Shelton [is] one of the
more misguided decisions of the United States Supreme
Court, I must say . . . so I will tell you straight up we [are]
not adhering to Alabama v. Shelton in every situation.”
315
Chief Justice Donald Beatty circulated a memo in 2017 to
the state’s trial judges rebuking the common practice of
sentencing defendants to prison without appointing con-
stitutionally required counsel.
316
311. See BORUCHOWITZ ET AL., supra note 83, at 15.
312. See, e.g., Erica Hashimoto, The Problem with Misdemeanor Representation, 70
WASH. & LEE L. REV. 1019, 1020 (2013).
313. See S
TEPHEN F. HANLON, THOMAS B. HARVEY & NORMAN LEFSTEIN, AM.
BAR ASS’N, DENIAL OF THE RIGHT TO COUNSEL IN MISDEMEANOR CASES: COURT
WATCHING IN NASHVILLE, TENNESSEE 8 (2017), https://www.courthousenews.com/
wp-content/uploads/2017/08/NashvilleMisdemeanor.pdf [https://perma.cc/RC6Z-
VMMD].
314. S
IXTH AMENDMENT CTR., THE RIGHT TO COUNSEL IN UTAH: AN ASSESSMENT OF
TRIAL-LEVEL INDIGENT DEFENSE SERVICES, at III (2015), https://sixthamendment.org/
6ac/6AC_utahreport.pdf [https://perma.cc/Y33Y-WRRF].
315. See B
ORUCHOWITZ ET AL., supra note 83, at 17 (alterations in original) (in-
ternal quotation marks omitted).
316. Memorandum from Donald W. Beatty, Chief Justice, S.C. Supreme Court,
to Magistrates and Municipal Judges, Sentencing Unrepresented Defendants to
Imprisonment (Sept. 15, 2017), https://www.sccourts.org/summaryCourtBenchBook/
MemosHTML/2017-09.htm [https://perma.cc/ZN7Q-JKMJ].
690 Harvard Journal of Law & Public Policy [Vol. 43
4. In 2010, the New York Supreme Court allowed a lawsuit
to proceed alleging a systematic failure to provide any
counsel in a range of cases in several counties.
317
5. In Indiana, a state that guarantees appointed counsel in
all misdemeanor cases, a recent government report con-
cluded that only 36 percent of misdemeanor defendants
receive appointed counsel.
318
Further, some states use other methods to avoid appointing
counsel to indigent defendants. For example, jurisdictions are
increasingly pressuring indigent defendants to pay fees for the
appointment of counsel.
319
One judge in Michigan estimated
that 95 percent of misdemeanor defendants were waiving their
right to counsel because of these fees.
320
Additionally, some
state court systems pressure defendants to waive their constitu-
tional rights.
321
This pressure is a common practice in a sub-
stantial number of states.
322
Pressure may be unnecessary,
however. A judge and a prosecutor in Jacksonville, Florida, ex-
plained that a substantial percentage of misdemeanor defend-
ants will happily waive their right to counsel in exchange for
probation and a suspended sentence.
323
Finally, some states
impose very demanding indigence standards that prevent the
vast majority of poor people from qualifying for appointed
counsel.
324
In states that do not consistently provide effective counsel in
felony cases or provide any counsel in misdemeanor cases
where imprisonment or suspended sentences are imposed, it is
hard to imagine they consistently honor state-law rights to
317. See Hurrell-Harring v. State, 930 N.E.2d 217, 219, 228 (N.Y. 2010).
318. See I
ND. TASK FORCE ON PUB. DEF., supra note 67, at 34.
319. See Backus & Marcus, supra note 293, at 1588.
320. A
LICIA BANNON, MITALI NAGRECHA & REBEKAH DILLER, BRENNAN CTR.
FOR JUSTICE, CRIMINAL JUSTICE DEBT: A BARRIER TO REENTRY 12 (2010), https://
www.brennancenter.org/sites/default/files/2019-08/Report_Criminal-Justice-Debt-
%20A-Barrier-Reentry.pdf [https://perma.cc/C59X-JKWZ].
321. See S
IXTH AMENDMENT CTR., supra note 59, at 6 (describing the frequency of
this practice in Delaware misdemeanor courts and estimating that 75 percent of
misdemeanor defendants proceed through the Delaware courts without ever
speaking to a lawyer).
322. See, e.g., id. at 16–17. Practitioners I spoke with also confirmed this fact. See,
e.g., Telephone Interview with David Heilberg, supra note 77.
323. See Telephone Interview with Meredith Charbula, supra note 203; Tele-
phone Interview with L.E. Hutton, supra note 93.
324. See, e.g., Marcus, supra note 8, at 153–54.
No. 3] Sixth Amendment Federalism 691
counsel going beyond what the U.S. Constitution requires. In
short, it may be easier to recognize a right than to make it real.
III. L
AW AND POLICY: SHOULD THERE BE A RIGHT TO
A
PPOINTED COUNSEL BEYOND WHAT SCOTT REQUIRES?
With existing law on the table, this Article turns to what the
law is and should be. This Part considers two conceptually dis-
tinct questions. First, should either the U.S. Supreme Court or
state courts recognize a broader constitutional right to counsel?
Second, should policymakers codify a broader right to counsel?
Regarding the first question, this Article argues Scott v. Illinois
was rightly decided. The constitutional text does not mandate
appointed counsel in all criminal cases, and federalism con-
cerns militate against imposing a uniform requirement on all of
the states. The answer, however, might be different under some
state constitutions.
To answer the second question, Part III.B marshals the ar-
guments on both sides of the question. Ultimately, this Article
concludes there is no one-size-fits-all answer, and that a juris-
diction’s optimal approach should depend on its particular
characteristics.
A. Is There a Constitutional Right to Appointed Counsel in
All Criminal Cases?
Numerous scholars argue the Supreme Court should over-
rule Scott v. Illinois and require the appointment of counsel in
all criminal cases.
325
Although the Sixth Amendment does not
recognize such a right, some state constitutions likely do.
1. Federal Constitution
The Federal Constitution should not be interpreted to require
the appointment of defense counsel in all criminal cases for
several reasons.
First, the Constitution’s original public meaning does not
mandate the appointment of counsel in all criminal cases. The
Sixth Amendment says, “In all criminal prosecutions, the ac-
cused shall enjoy the right . . . to have the Assistance of Counsel
325. See supra note 8.
692 Harvard Journal of Law & Public Policy [Vol. 43
for his defence.”
326
Justice Brennan’s Scott dissent focused on
the word “all.”
327
Thus, he argued that “the plain wording of
the Sixth Amendment . . . compel[led] the conclusion” that
counsel is required in all cases in which a defendant is charged
with an offense for which imprisonment is authorized.
328
But originally, the Sixth Amendment was not understood to
provide a right to appointed counsel, but rather a right to re-
tained counsel acquired without the government’s assistance.
329
For a long time in England, there was no right to appear with
retained counsel during felony cases.
330
Indeed, it was innova-
tive when Parliament allowed those charged with treason to
appear with retained counsel.
331
Further, the first Congress
passed a statute requiring appointed counsel for defendants in
capital cases but not other crimes in federal court.
332
Because
this statute coexisted with the ratified Sixth Amendment, gov-
ernment officials in the 1790s apparently did not understand
the Sixth Amendment to require a broad right to appointed
counsel. For originalists, that should be enough to reject Justice
Brennan’s argument.
Of course, Justice Brennan was not an originalist,
333
and he
was likely arguing the Sixth Amendment’s modern meaning
326. U.S. CONST. amend. VI.
327. See Scott v. Illinois, 440 U.S. 367, 375, 378 (1979) (Brennan, J., dissenting).
328. Id. at 376.
329. See, e.g., Bute v. Illinois, 333 U.S. 640, 661 n.17 (1948) (“It is probably safe to
say that from its adoption in 1791 until 1938, the right conferred on the accused by
the Sixth Amendment . . . was not regarded as imposing on [federal courts] the
duty to appoint counsel for an indigent defendant.” (quoting Alexander Holtzoff,
The Right of Counsel Under the Sixth Amendment, 20 N.Y.U.
L.Q. REV. 1, 7–8, 10
(1944)) (internal quotation marks omitted)); W
ILLIAM M. BEANEY, THE RIGHT TO
COUNSEL IN AMERICAN COURTS 27–30 (1955); DAVID A. STRAUSS, THE LIVING
CONSTITUTION 107 (2010) (“It was no part of the original understanding that the
government might have to hire a lawyer for a defendant who could not afford
one.”).
330. See Garza v. Idaho, 139 S. Ct. 738, 756–58 (2019) (Thomas, J., dissenting)
(discussing the original public meaning of the right to counsel and citing historical
evidence).
331. See Erica J. Hashimoto, An Originalist Argument for a Sixth Amendment Right
to Competent Counsel, 99 I
OWA L. REV. 1999, 2004 (2014) (discussing the Treason
Act and calling it “remarkable for its time”).
332. See Federal Crimes Act of 1790, ch. 9, § 29, 1 Stat. 112, 118–19.
333. See Richard A. Posner, A Tribute to Justice William J. Brennan, Jr., 104 H
ARV.
L. REV. 13, 14 (1990) (“Justice Brennan has not pretended that the constitutional
revolution in which he has played a leading role was dictated by the text of the
Constitution or by the intentions of its framers.”).
No. 3] Sixth Amendment Federalism 693
supported his view.
334
When interpreting legal documents, the
strong traditional rule is that the original meaning must trump
the modern meaning.
335
Some scholars think that conventional
meaning should trump in the constitutional context for various
pragmatic or policy-based reasons, including that the original
public meaning is often difficult to identify or leads to an un-
desirable result.
336
But departing on these grounds from the original public
meaning of the Sixth Amendment in this context is unwarrant-
ed. First, the original public meaning is not obscure in this case.
Although Professor David Strauss favors a broad right to ap-
pointed counsel, even he acknowledges that the original public
meaning of the Sixth Amendment clearly did not require the
government to appoint counsel for indigent defendants.
337
In-
terpreting the Sixth Amendment to require appointed counsel
based on an arguable present-day meaning thus seems about as
sensible as interpreting the Constitution’s Domestic Violence
Clause to empower the federal government to combat spousal
abuse.
338
Further, trying to regulate the right to appointed counsel
through the Sixth Amendment’s text seems like an unwise task.
Historical evidence makes clear the Sixth Amendment was not
designed to regulate the right to appointed counsel; it was
adopted in a historical context where public prosecutors and
even retained defense lawyers were rare.
339
States would not
develop systems to regularly appoint defense counsel until the
334. Cf. STRAUSS, supra note 329, at 107 (observing that “it is just a coincidence”
that Gideon “happens to fit nicely with the language of the Sixth Amendment”).
335. See A
NTONIN SCALIA & BRIAN A. GARNER, READING LAW: THE INTERPRETA-
TION OF
LEGAL TEXTS 78–92 (2012).
336. See S
TRAUSS, supra note 329, at 106–08.
337. See id. at 107.
338. See U.S.
CONST. art. IV, § 4 (“The United States shall . . . protect each of [the
states] . . . on Application of the Legislature . . . against domestic Violence.”);
Thomas R. Lee & James C. Phillips, Data-Driven Originalism, 167 U.
PA. L. REV. 261,
298 (2019) (“Today [domestic violence] is almost always used to refer to ‘violent
or aggressive behavior within the home, esp[ecially] violent abuse of a partner.’
Yet at the founding, this phrase apparently carried a different meaning; it was
understood as a reference to insurrection, rebellion, or rioting within a state . . . .”
(footnote omitted) (second alteration in original)).
339. See, e.g., S
TEPHANOS BIBAS, THE MACHINERY OF CRIMINAL JUSTICE 16 (2012)
(documenting how prosecutors and defense lawyers only became common in the
late eighteenth century); John H. Langbein, Understanding the Short History of Plea
Bargaining, 13 L
AW & SOC’Y REV. 261, 262–65 (1979).
694 Harvard Journal of Law & Public Policy [Vol. 43
early 1900s.
340
Because the Sixth Amendment was not designed
to regulate the right to appointed counsel, we should not ex-
pect it to be a well-calibrated vehicle for defining the optimal
scope of appointed counsel.
Another potential textual hook for the right to appointed
counsel is the Due Process Clause,
341
which the Supreme Court
has interpreted to require each state to uphold principles of
“fundamental fairness.”
342
In many criminal cases, fundamental
fairness may require the appointment of counsel. After all, as
Justice Sutherland observed in Powell, the criminal justice sys-
tem had undoubtedly become quite complex by the twentieth
century, creating the risk that innocent defendants would be
frequently convicted under it.
343
Under this doctrine, the
Court’s decision in Gideon may be justified.
344
But the Court’s fundamental fairness doctrine does not pro-
vide a solid footing to ground a broad right to appointed coun-
sel. As Justice Kennedy explained in Medina v. California,
345
the
Court has “defined the category of infractions that violate fun-
damental fairness very narrowly based on the recognition that,
beyond the specific guarantees enumerated in the Bill of
Rights, the Due Process Clause has limited operation.”
346
The
Court is cautious because “the expansion of . . . constitutional
guarantees under the open-ended rubric of the Due Process
340. See BIBAS, supra note 339, at 16.
341. See U.S.
CONST. amend. V; Akhil Reed Amar, Sixth Amendment First Princi-
ples, 84 G
EO. L.J. 641, 707–08 (1996) (“[T]he indigent’s right to appointed counsel
could also be derived from the innocence-protecting spirit of the Due Process
Clause.”).
342. See, e.g., Medina v. California, 505 U.S. 437, 443 (1992).
343. See Powell v. Alabama, 287 U.S. 45, 69 (1932).
344. See Amar, supra note 341, at 707–08. But see Sessions v. Dimaya, 138 S. Ct.
1204, 1224 (2018) (Gorsuch, J., concurring in part and concurring in the judgment)
(arguing the Due Process Clause requires governments to adhere to the “custom-
ary procedures to which freemen were entitled to by the old law of England” be-
fore depriving an individual of life, liberty, or property (quoting Pac. Mut. Life
Ins. Co. v. Haslip, 499 U.S. 1, 28 (1991) (Scalia, J., concurring in the judgment))
(internal quotation marks omitted)); Hamdi v. Rumsfeld, 542 U.S. 507, 589 (2004)
(Thomas, J., dissenting) (suggesting that the original public meaning of the Due
Process Clause only requires that the government “proceed according to the ‘law
of the land’” (quoting In re Winship, 397 U.S. 358, 382 (1970) (Black, J., dissenting))
(internal quotation marks omitted)).
345. 505 U.S. 437.
346. Id. at 443 (alteration adopted) (quoting Dowling v. United States, 493 U.S.
342, 352 (1990)) (internal quotation marks omitted).
No. 3] Sixth Amendment Federalism 695
Clause invites undue interference with both considered legisla-
tive judgments and the careful balance that the Constitution
strikes between liberty and order.”
347
There are good reasons for this rule. First, the Court is usually
ill-equipped to make judgements about what is optimal crimi-
nal justice policy. As Justice Byron White recognized in Patterson
v. New York,
348
“preventing and dealing with crime is much
more the business of the States than it is of the Federal
Government,”
349
meaning that the Court “should not lightly
construe the Constitution so as to intrude upon the administra-
tion of justice by the individual States.”
350
Second, constitution-
alizing additional areas and removing them from the processes
of democratic governments risks unduly concentrating power
in the Supreme Court, which undermines representative gov-
ernment.
351
Third, concentrating power in the Supreme Court
undermines good government. The Justices and their limited
staff may not have access to the information and time they
would need to wisely create a misdemeanor justice system for
all fifty states.
Finally, federalism principles go a long way in supporting
the Court’s refusal to extend the right to counsel in Scott. The
Court’s inaction enables our country to reap the benefits of fed-
eralism. As Justice Brandeis once noted, federalism means that
“a single courageous State may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments
without risk to the rest of the country.”
352
As discussed in Part
IV.B, our system desperately needs some experimentation and
innovation in the area of misdemeanor justice. Preserving room
for the States to act as laboratories of democracy is therefore
essential.
Additionally, Supreme Court inaction allows state govern-
ments to better cater to their citizens’ priorities and values. As
Part III.B.2 makes clear, mandating more appointed counsel for
indigent defendants would have to come at the expense of other
347. Id.
348. 432 U.S. 197 (1977).
349. Id. at 201 (citing Irvine v. California, 347 U.S. 128, 134 (1954) (plurality opinion)).
350. Id.
351. See S
UTTON, supra note 12, at 17.
352. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J.,
dissenting).
696 Harvard Journal of Law & Public Policy [Vol. 43
priorities and values. In other words, there is a difficult values-
based choice to make. It is not an easy choice. Federalism al-
lows the States (and localities) to adopt different answers to
such choices. For those who wish to impose uniform solutions
on the country in the style of a central planner, this may be a
downside.
353
But the Framers saw it as a benefit. As “Federal
Farmer” wrote in a 1787 pamphlet, “[O]ne government and
general legislation alone, never can extend equal benefits to all
parts of the United States: Different laws, customs, and opin-
ions exist in the different states, which by a uniform system of
laws would be unreasonably invaded.”
354
In other words, the
people of different states have different political preferences,
and federalism allows elected officials in state and local gov-
ernments to tailor policies to those preferences more easily than
the federal government.
355
In short, federalism-based decisions are worth defending. As
Part IV.A discusses, the right-to-counsel area has been a feder-
alism success story, at least on paper. But to the extent it has
not been a success story, federalism gives the States desperately
needed room to innovate in this area, as discussed in Part IV.B.
If the Supreme Court had sided with the plaintiffs in Scott, a
particular form of the adversarial model (which is not working
even for more serious cases in many parts of the country)
would have been frozen in place for misdemeanors.
2. State Constitutions
The argument for a broader right to counsel is stronger under
some state constitutions than under the Federal Constitution.
Litigants can look to several state-specific sources to support
their legal arguments.
First, some state constitutional texts appear to require the
appointment of counsel in a broader range of criminal cases
than does the text of the Sixth Amendment. The following table
reproduces state constitutional provisions that arguably articu-
late a broader right to counsel than the Sixth Amendment does:
353. See Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National
Neurosis, 41 UCLA
L. REV. 903, 914 (1994).
354. Letters from the Federal Farmer, Letter I (Oct. 8, 1787), in 2 T
HE COMPLETE
ANTI-FEDERALIST 223, 230 (Herbert J. Storing ed., 1981).
355. See Michael W. McConnell, Federalism: Evaluating the Founders’ Design, 54 U.
CHI. L. REV. 1484, 1493–94 (1987) (book review).
No. 3] Sixth Amendment Federalism 697
TABLE 2: STATE CONSTITUTIONS WITH ARGUABLY BROADER RIGHTS
TO APPOINTED COUNSEL
STATE STATE CONSTITUTIONAL LANGUAGE
Georgia
“Every person charged with an offense
against the laws of this state shall have the
p
rivile
g
eandbene
f
it of counsel....”
356
Hawaii
“The State shall provide counsel for an indi-
gent defendant charged with an offense pun-
ishable b
y
im
p
risonment.”
357
Louisiana
“When any person has been arrested or de-
tained in connection with the investigation or
commission of any offense . . . [he has the]
right to the assistance of counsel and, if indi-
gent, his right to court appointed counsel. . . .
At each stage of the proceedings, every per-
son is entitled to assistance of counsel of his
choice, or appointed by the court if he is indi-
gent and charged with an offense punishable
b
y
im
p
risonment.”
358
New Hampshire
“Every person held to answer in any crime or
offense punishable by deprivation of liberty
shall have the right to counsel at the expense
of the state if need is shown ....”
359
North Dakota
“In criminal prosecutions in any court whatever
,
the party accused shall have the right to . . .
appear and defend in person and with
counsel.”
360
Ohio
“In any trial, in any court, the party accused
shall be allowed to appear and defend in per-
son and with counsel ....”
361
West Virginia
“In all [trials of crimes and of misdemeanors]
the accused . . . shall have the assistance of
counsel ....”
362
356. GA. CONST. art I, § 1, para. 14 (emphasis added).
357. H
AW. CONST. art. I, § 14.
358. L
A. CONST. art. I, § 13.
359. N.H.
CONST. pt. I, art. XV.
360. N.D.
CONST. art. I, § 12 (emphasis added).
361. O
HIO CONST. art I, § 10.
362. W.
VA. CONST. art. III, § 14 (emphasis added).
698 Harvard Journal of Law & Public Policy [Vol. 43
Although the Sixth Amendment was adopted in an era
where appointed counsel was almost unheard of, several of
these state constitutions were adopted or amended during the
twentieth century.
363
Of these states, only Hawaii and Louisiana
have recognized a broader state-law right to counsel than Scott
requires.
364
The North Dakota Supreme Court relied on its
unique right-to-counsel provision to limit the use of uncounseled
convictions to enhance sentences in subsequent prosecutions.
365
Most state constitutions, however, articulate the right to
counsel in language that is identical, or nearly identical, to the
Sixth Amendment. Moreover, some state constitutional provi-
sions appear on their face less amenable than the Sixth
Amendment to an interpretation requiring appointed counsel
in all criminal cases. The following table reproduces such
provisions:
363. See, e.g., GA. CONST. (adopted in 1983); HAW. CONST. (adopted in 1950); LA.
CONST. (adopted in 1974); N.H. CONST. (amended in 1966 to provide the right to
counsel at state expense if need is shown).
364. See State v. Dowler, 909 P.2d 574, 577 (Haw. Ct. App. 1995); State v. Deville,
879 So. 2d 689, 690 (La. 2004) (“In this respect, Louisiana law provides broader
protection than the Sixth Amendment requires.”).
365. State v. Orr, 375 N.W.2d 171, 178–79 (N.D. 1985).
No. 3] Sixth Amendment Federalism 699
TABLE 3: STATE CONSTITUTIONS WITH APPARENTLY NARROWER
R
IGHTS TO APPOINTED COUNSEL
STATE STATE CONSTITUTIONAL PROVISION
California
“In criminal cases the rights of a defendant . . .
to the assistance of counsel . . . shall be con-
strued by the courts of this State in a manner
consistent with the Constitution of the United
States. This Constitution shall not be con-
strued by the courts to afford greater rights to
criminal defendants than those afforded by
the Constitution of the United States.”
366
Nevada
“[A]nd in any trial, in any court whatever, the
party accused shall be allowed to appear and
defend in person, and with counsel, as in civil
actions.”
367
Maryland
“That in all criminal prosecutions, every man
hath a ri
g
ht... to be allowed counsel....”
368
New York
“In any trial in any court whatever the party
accused shall be allowed to appear and de-
fend in person and with counsel as in civil
actions ....”
369
Pennsylvania
“In all criminal prosecutions the accused hath
a right to be heard by himself and his
counsel....”
370
South Carolina
“Any person charged with an o
f
fense shall
enjoy the right . . . to be fully heard in his de-
fense by himself or by his counsel or by
both.”
371
Virginia
The Virginia Constitution does not have a
ri
g
ht-to-counsel
p
rovision.
In summary, litigants arguing for or against a broader right
to appointed counsel under state constitutions should be mind-
ful of the varying constitutional texts among states.
366. CAL. CONST. art I, § 24.
367. N
EV. CONST. art. I, § 8 (emphasis added).
368. M
D. CONST., Declaration of Rights, art. XXI (emphasis added).
369. N.Y.
CONST. art. I, § 6 (emphasis added).
370. P
A. CONST. art. I, § 9 (emphasis added).
371. S.C.
CONST. art. I, § 14.
700 Harvard Journal of Law & Public Policy [Vol. 43
Second, as discussed in Part II.C.3.b, the States have different
histories that litigants may be able to use to their advantage.
Indeed, the Iowa Supreme Court partially relied on statements
by the framers of the Iowa Constitution when adopting the au-
thorized imprisonment rule.
372
Litigants and scholars favoring a
broader right to counsel might have some success if they mine
state histories for similar evidence.
373
Third, state judiciaries have different sets of precedent to call
upon than does the U.S. Supreme Court. For example, some
states analyze due process claims in the criminal context under
the three-part framework developed in Mathews v. Eldridge.
374
In contrast, the U.S. Supreme Court has adopted a less rights-
protective standard, explicitly rejecting the Mathews framework
in the criminal context.
375
Thus, litigants might have more suc-
cess in arguing for an expanded right to counsel in state courts
than in federal courts.
Finally, litigants seeking remedies under state law must
reckon with the states’ varying separation-of-powers con-
straints. For example, West Virginia has traditionally been very
strict with its separation-of-powers doctrine, whereas New Jersey
has been more relaxed.
376
In general, judiciaries in states with
stricter separation-of-powers traditions may be more hesitant
to expand the state-law right to counsel, in large part because
those judges will anticipate the difficulties of making the other
branches of state government fulfill and fund the right.
In sum, litigants should remember that they can vindicate
their claims under state constitutions, perhaps with better
chances of success than under the Federal Constitution.
377
372. State v. Young, 863 N.W.2d 249, 278 (Iowa 2015).
373. Cf. S
UTTON, supra note 12, at 17 (“Might the state courts of Utah and Rhode
Island and Maryland construe a free exercise clause differently than other state
courts given their histories?”).
374. See, e.g., State v. Woodruff, 951 P.2d 605, 613 (N.M. 1997) (citing Mathews v.
Eldridge, 424 U.S. 319, 334–35 (1976)).
375. See Medina v. California, 505 U.S. 437, 443 (1992).
376. See G.
ALAN TARR, UNDERSTANDING STATE CONSTITUTIONS 15 & nn.37–38
(1998).
377. See S
UTTON, supra note 12, at 8–10.
No. 3] Sixth Amendment Federalism 701
B. Policy Arguments For and Against a Broader Right to
Counsel than Scott Requires
Of course, the courts are not the only government actors ca-
pable of regulating rights. On paper at least, state legislatures
and rules committees have been significantly more important
in expanding the right to appointed counsel than state courts.
So how should policymakers decide whether to expand the
entitlement to appointed counsel? This Part explores various
arguments on both sides of the issue. Ultimately it is a close
question, and there is no one-size-fits-all answer. Instead, a ju-
risdiction’s optimal policy approach should depend on the spe-
cific characteristics of the state or locality.
1. Policy Arguments in Favor of a Broader Right
Gideon itself makes the primary argument for a broader con-
stitutional right to counsel: fairness. In Gideon, Justice Black ob-
served, “[t]hat government hires lawyers to prosecute . . . in-
dicat[es] . . . that lawyers in criminal courts are necessities, not
luxuries.”
378
As one scholar observed, Gideon’s logic is not teth-
ered to the seriousness of the offense; it seems to apply to all
criminal trials.
379
If the state elects to spend resources to crimi-
nally prosecute, the argument goes, fairness requires that it also
furnish an indigent defendant with counsel.
380
Relatedly, if rich
defendants would hire a lawyer in misdemeanor cases, it may
be unfair to withhold counsel from poor defendants.
381
But these arguments from fairness do not necessarily support
the conclusion that the state should guarantee counsel in all
criminal proceedings. In some jurisdictions, prosecutors are not
always present to prosecute low-level criminal offenses. For
example, a Pennsylvania trial judge estimated that the police
stand in for the prosecutor in about 90 percent of the summary
offense trials in his county.
382
Similarly, in Virginia, the police
sometimes face off against uncounseled defendants in sus-
378. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
379. See Kitai, supra note 8, at 45.
380. See Marcus, supra note 8, at 161–62; Kitai, supra note 8, at 46.
381. Kitai, supra note 8, at 39 (“The principle of equality is violated when de-
fendants who cannot afford counsel are exposed to a greater risk of an unreliable
verdict than their affluent counterparts.”).
382. See Telephone Interview with Jonathan Birbeck, supra note 88.
702 Harvard Journal of Law & Public Policy [Vol. 43
pended license prosecutions.
383
Furthermore, misdemeanor
trials are rare.
384
And, as discussed below, it is not clear how
much value a defense lawyer adds during misdemeanor plea
bargaining.
Second, defense lawyers are arguably necessary to prevent
inaccurate adjudications. The modern criminal trial, dominated
by the public prosecutor, is complex. There is, for example, lit-
tle hope that a layman will be able to understand the rules of
evidence. Misdemeanor cases can produce complicated legal
questions, despite their seemingly lower stakes, and having a
defense lawyer in every case could produce more accurate ad-
judications.
385
But judges can assist defendants in simple cases.
For example, one Iowa magistrate judge explained that, before
Iowa adopted the authorized imprisonment test, she would
have to enforce the rules of evidence against the prosecution,
because one cannot expect the defendant to understand the
hearsay rule.
386
As she put it, she “had to be careful to vindicate
the rights of defendants when the defendant could not recog-
nize them.”
387
Third, criminal fines and forfeitures are burdensome crimi-
nal penalties, so appointing counsel is arguably necessary to
protect defendants. At the center of Justice Rehnquist’s Scott
analysis was the premise that incarceration is a far more serious
punishment than criminal fines.
388
But some scholars have ar-
gued to the contrary that criminal fines are more serious penalties
than many believe.
389
The problem for many poor defendants is
that they cannot afford the fines, and that failure to pay them
may result in additional fees and interest charges.
390
It is also
383. See Telephone Interview with David Heilberg, supra note 77. But see Kitai,
supra note 8, at 39 (“We can just imagine the possible damage to law enforcement
if the presiding judge were authorized to ask the prosecutor to leave the court
since the case is not complex and could be presented by the victim without wast-
ing the prosecuting attorney’s time and money.”).
384. See King & Heise, supra note 89, at 1940.
385. See Roberts, supra note 8, at 303–06, 333.
386. Telephone Interview with Lynn Rose, supra note 101.
387. Id.
388. See Scott v. Illinois, 440 U.S. 367, 372–73 (1979).
389. See Buskey & Lucas, supra note 8, at 2319–20.
390. See Katherine Beckett & Alexes Harris, On cash and conviction: Monetary
sanctions as misguided policy, 10 C
RIMINOLOGY & PUB. POL’Y 509, 516–17 (2011).
No. 3] Sixth Amendment Federalism 703
easy to imagine the abuse of forfeiture proceedings in these
cases, especially in jurisdictions that do not limit civil forfeitures.
Fourth, in addition to the burden of fines and forfeitures,
there are serious collateral consequences flowing from criminal
convictions.
391
Possibly the most significant collateral conse-
quence is that having a criminal conviction often creates seri-
ous problems for a person’s ability to find or keep employ-
ment.
392
A misdemeanor conviction may preclude obtaining
various types of professional licenses in areas like police work,
nursing, or law.
393
Further, because of internet-based databases
of criminal records, employers can easily check to see if a job
applicant has a criminal record.
394
And, rightly or wrongly,
employers often consider hiring applicants with criminal rec-
ords relatively risky.
Although employment discrimination is the most frequent
collateral consequence, there are others. For example, having a
misdemeanor conviction can make it more difficult to gain ad-
mittance into schools and colleges.
395
Further, a misdemeanor
conviction can affect eligibility for public benefits, like public
housing.
396
Finally, a criminal conviction can cause particularly
serious problems for noncitizens.
397
Being convicted of a crime
involving moral turpitude (CIMT) during the naturalization
statutory period automatically renders an alien ineligible for
naturalization if the maximum possible penalty for the offense
391. See, e.g., Natapoff, supra note 1, at 1323–27 (suggesting the collateral conse-
quences transform the person into a criminal, and that “a significant psycho-social
line has been crossed”).
392. See Marcus, supra note 8, at 173–75.
393. See id. at 174–75 (documenting various types of licenses that are harder to
obtain because of a misdemeanor conviction).
394. See, e.g., Instant Access to Pennsylvania State, County and Municipal Records,
P
A. ST. RECORDS, https://pennsylvania.staterecords.org [https://perma.cc/S9NS-
BXKK] (last visited Mar. 17, 2020) (allowing individuals to search for Pennsylvania
criminal records); see also Binyamin Appelbaum, Out of Trouble, but Criminal Rec-
ords Keep Men Out of Work,
N.Y. TIMES (Feb. 28, 2015), https://nyti.ms/1C8KVBq
[https://perma.cc/4G8E-KF9T].
395. Although the Common Application, which many students use to apply to
college, recently stopped asking about criminal convictions, many schools still
individually ask applicants if they have criminal records. See Scott Jaschik, Common
App Drops Criminal History Question, I
NSIDE HIGHER ED (Aug. 13, 2018), https://
www.insidehighered.com/admissions/article/2018/08/13/common-application-
drops-criminal-history-question-although-colleges [https://perma.cc/7J9L-5UTB].
396. See Marcus, supra note 8, at 182–83.
397. For a thorough discussion, see Clapman, supra note 8, at 586–88.
704 Harvard Journal of Law & Public Policy [Vol. 43
was more than one year.
398
Although most misdemeanors are
not CIMTs, some can be, including petty theft, drug possession,
and turnstile jumping, which can involve potential sentences of
a year or more, thereby subjecting noncitizens to potential de-
portation.
399
Moreover, the Board of Immigration Appeals has
held that it will consider uncounseled convictions for immigra-
tion law purposes.
400
Fifth, although the U.S. Supreme Court prohibits the States
from directly imprisoning an uncounseled defendant, it allows
them to do so indirectly by using uncounseled convictions to
enhance sentences in subsequent cases.
401
Many state legisla-
tures have authorized harsher prison sentences for repeat of-
fenders.
402
Uncounseled misdemeanors can trigger these sen-
tencing schemes, thus leading to more time in prison for
subsequent convictions. For example, in Nichols itself, counting
the uncounseled conviction increased the defendant’s criminal
history score by one point, thus causing his maximum possible
sentence to increase by twenty-five months.
403
Of course, states
that do not offer more appointed counsel than Scott requires
can limit the use of uncounseled misdemeanors under their
sentencing schemes. Florida and North Dakota follow this
approach.
404
Sixth, appointing counsel in all criminal cases could deter
states from prosecuting minor crimes. Many scholars have de-
cried the trend toward overcriminalization in our society, argu-
ing that it effectively gives the police and prosecutors a vast
discretionary power that threatens rule-of-law principles.
405
This trend extends to misdemeanors. In Scott, Justice Brennan
398. 8 U.S.C. § 1182(a)(2)(A) (2018).
399. See Cade, supra note 308, at 1754 (“Turnstile jumping, petty shoplifting, and
misdemeanor marijuana possession, among many other low-level offenses, can
trigger deportation, sometimes with almost no possibility of discretionary relief.”).
400. See Matter of Cuellar-Gomez, 25 I. & N. Dec. 850, 851–55 (B.I.A. 2012) (interim
decision) (holding municipal marijuana violation constitutes conviction for immi-
gration purposes where defendant was not afforded right to counsel or advised of
potential immigration consequences).
401. See supra Part I.D.
402. See Lisa Eaton, Three Strikes and You’re Out: Enhanced Sentences for Repeat
Offenders Research Pathfinder, 22 L
EGAL REFERENCE SERVICES Q., no. 4, 2003, at 55.
403. See Nichols v. United States, 511 U.S. 738, 740–41 (1994).
404. See supra Part II.B.6.
405. See, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100
M
ICH. L. REV. 505, 506–09 (2001).
No. 3] Sixth Amendment Federalism 705
suggested that requiring the States to appoint counsel in a
broader set of cases “would lead state and local governments to
re-examine their criminal statutes [because they] might deter-
mine that [they] no longer desired to authorize incarceration
for certain minor offenses in light of the expense of meeting the
requirements of the Constitution.”
406
Of course, whether courts
should push for substantive criminal law reforms by manipu-
lating procedure is controversial. But forcing the States to pro-
vide appointed lawyers in all misdemeanor cases would make
prosecuting these cases less economically feasible, and some
may see that as positive development.
2. Policy Arguments Against a Broader Right
There are persuasive arguments against expanding the right
to appointed counsel. First, it would be expensive. As Justice
Rehnquist noted in Scott, it may be difficult to estimate exactly
what these costs would be, but they would be “necessarily sub-
stantial.”
407
At the same time, state budgets are very limited—
many are still recovering from the 2008 financial crisis
408
—and
under significant pressure. Although some states have raised
taxes, most have focused on spending cuts.
409
This may help ex-
plain why some states have cut their indigent defense budgets.
410
Some states are failing to make budget appropriations.
411
State
budgets will likely be under even more pressure due to the
COVID-19 outbreak across the country.
406. Scott v. Illinois, 440 U.S. 367, 388 (1979) (Brennan, J., dissenting).
407. See id. at 373 (majority opinion).
408. See Barb Rosewicz & Daniel Newman, Tax Revenue Has Recovered in 31 States,
Despite Flat Q3, P
EW CHARITABLE TR. (May 17, 2017), http://www.pewtrusts.org/
en/research-and-analysis/analysis/2017/05/17/tax-revenue-has-recovered-in-31-
states-despite-flat-q3 [https://perma.cc/6A7N-9FP6].
409. See Tracy Gordon, State and Local Budgets and the Great Recession, B
ROOKINGS
(Dec. 31, 2012), https://www.brookings.edu/articles/state-and-local-budgets-and-the-
great-recession/ [https://perma.cc/KE9P-SCAU].
410. See, e.g., E
RINN HERBERMAN & TRACEY KYCKELHAHN, U.S. DEP’T OF JUSTICE,
STATE GOVERNMENT INDIGENT DEFENSE EXPENDITURES, FY 2008–2012—UPDATED
1, 5 (2015), https://www.bjs.gov/content/pub/pdf/sgide0812.pdf [https://perma.cc/
KKR3-TSD7].
411. See, e.g., Matt Byrne, State funding for court-appointed attorneys runs out,
P
ORTLAND PRESS HERALD (May 3, 2017), http://www.pressherald.com/2017/05/03/
state-funding-for-court-appointed-attorneys-runs-out/ [https://perma.cc/8ELP-83J9]
(documenting the failure of the Maine Legislature to appropriate money for indi-
gent defense so attorneys had to work without pay for two months).
706 Harvard Journal of Law & Public Policy [Vol. 43
Second, requiring the appointment of defense lawyers in
low-level criminal cases could increase the time costs of all par-
ties involved.
412
Admittedly, there is compelling scholarship
suggesting that defense lawyers actually accelerate the disposi-
tion of criminal cases by greasing the wheels of plea bargain-
ing.
413
But lawyers are capable of clogging the system of justice,
as Justice Powell argued in Argersinger.
414
Delays caused by
lawyers may actually prejudice defendants, who have an interest
in getting proceedings “over with.”
415
In Montgomery County,
Pennsylvania, one judge explained that his “worst cases” are
those where defendants bring lawyers in, because they slow
things down and usually make bad arguments. Delaying adju-
dication is particularly bad for defendants unable to make bail
because they must await trial in jail. In the meantime, they
might lose their job and be unable to provide for their family.
Third, appointed lawyers may not be essential in a misde-
meanor system dominated by plea bargaining. Trials are rare,
with some estimating that 95 percent of misdemeanor defend-
ants plead guilty.
416
Most defendants do not want to contest
their guilt; they just want to get the process “over with” and
move on with their lives.
417
This problem is aggravated if the
court sets bail for an indigent defendant, who might be incen-
tivized to plead guilty to get out of pretrial detention.
418
For the
relatively few defendants who do not plead guilty at the first
appearance, it is questionable how helpful appointed lawyers
are in negotiating misdemeanor plea bargains. Because prose-
cutors are generally incentivized to secure quick convictions,
419
412. See, e.g., BARTON & BIBAS, supra note 8, at 108–09.
413. See M
ILTON HEUMANN, PLEA BARGAINING: THE EXPERIENCES OF PROSECU-
TORS
, JUDGES, AND DEFENSE ATTORNEYS 89–90 (1978).
414. Argersinger v. Hamlin, 407 U.S. 25, 58 (Powell, J., concurring in the result)
(noting the “common tactic of counsel of exhausting every possible legal avenue,
often without due regard to its probable payoff”).
415. See
HEUMANN, supra note 413, at 89–90.
416. See, e.g., Bibas, supra note 306, at 1118. Of course, this will vary by jurisdic-
tion. For example, one Iowa magistrate judge estimated that about 30 percent of
summary offense defendants obtain trials in her county. Telephone Interview
with Lynn Rose, supra note 101.
417. See B
ARTON & BIBAS, supra note 8, at 58.
418. See Nick Pinto, The Bail Trap, N.Y.
TIMES MAG. (Aug. 13, 2015), https://
nyti.ms/1IJKXjS [https://perma.cc/PZ98-VTES].
419. See B
ARTON & BIBAS, supra note 8, at 86 (“Most prosecutors are interested in
maximizing their conviction rates as efficiently as possible.”); H
EUMANN, supra
No. 3] Sixth Amendment Federalism 707
they may offer generous terms (like low fines or credit for time
served) to uncounseled defendants that are similar to what
they would offer represented ones. This dynamic may extend
even to retained lawyers. One Florida defense lawyer told me
that prosecutors in Palm Beach County typically offer all mis-
demeanor defendants the same deals, regardless of whether
they are represented.
420
Admittedly, lawyers could theoretically
be useful in these cases as advisors on the collateral conse-
quences of guilty pleas.
421
As the former Chief Public Defender
of Montgomery County, Pennsylvania, explained to me, “most
criminal defendants don’t think about collateral consequences;
they’re only concerned with the here and now.”
422
But lawyers
are not the only actors that can tell defendants about collateral
consequences; judges can too.
Fourth, lawyers may not be essential in the relatively small
number of misdemeanor trials that do occur. Misdemeanor
trials often play out differently than typical felony trials. They
often resemble inquisitorial hearings, with the judge taking an
active role in asking questions and helping enforce the rules
against the prosecution.
423
Moreover, in some states, prosecu-
tors are usually not involved. For example, in Cumberland
County, Pennsylvania, the police appear on the state’s side in-
stead of a prosecutor in about 90 percent of summary offense
trials.
424
And although anti-Scott scholars have correctly ob-
served that some misdemeanor cases involve complex substan-
tive or procedural issues,
425
certain types of offenses make for
straightforward adjudications. For example, in prosecutions for
driving with a suspended license, the prosecution will usually
note 413, at 103 (“If it is a nonserious matter, [prosecutors] are amenable to de-
fense requests for a small fine in the circuit court . . . .”).
420. Interview with Scott Richardson, supra note 94.
421. See Buskey & Lucas, supra note 8, at 2318 (“Left alone to negotiate with the
prosecutor, the defendant has no way of knowing that the prosecutor’s seemingly
generous offer of no jail time may prove ruinous.”).
422. Telephone Interview with Dean Beer, Chief Pub. Def., retired, Montgomery
County, Pennsylvania (Mar. 7, 2019).
423. See Stephanos Bibas, Shrinking Gideon and Expanding Alternatives to Lawyers,
70 W
ASH. & LEE L. REV. 1287, 1290 (2013).
424. See, e.g., Telephone Interview with Jonathan Birbeck, supra note 88.
425. See Kitai, supra note 8, at 45 (“The prospective penalty makes no substantial
difference regarding the complexity of the trial.”).
708 Harvard Journal of Law & Public Policy [Vol. 43
not struggle to prove its case because it can rely on databases.
426
And the defendant may also be able to effectively defend her-
self by disputing the prosecutor’s attempt to prove the actus
reus of a simple offense.
427
Professor Erica Hashimoto considers empirical evidence on
this issue and concludes that the “empirical evidence currently
available supports the proposition that lawyers who are ap-
pointed in federal misdemeanor cases provide no significant
advantage to their clients.”
428
Quite the contrary: she finds that
pro se defendants were convicted at lower rates and got better
sentencing outcomes by statistically significant margins.
429
Al-
though most of Professor Hashimoto’s data comes from the
federal system, she concludes that the limited state court data
suggests “the outcomes of pro se defendants in state court may
actually be better—rather than worse—than the outcomes of
their federal counterparts.”
430
In the end, Professor Hashimoto’s
empirics are a good reminder that more lawyers do not guar-
antee more justice.
Fifth, it does not make sense to expand the right to counsel in
jurisdictions that are not meeting their existing constitutional
obligations. As discussed in Part II.D, many jurisdictions across
the country are consistently failing to provide effective counsel,
or any counsel, in a broad variety of cases. This is reflected in
the failure of the States to fund the right to appointed counsel.
Nationwide, between 1982 and 2005, the States increased their
collective allocation for indigent defense from one billion dollars
to three and a half billion dollars, a 75 percent increase after
adjusting for inflation.
431
Simultaneously, the total number of
cases where indigent defense is legally required has doubled or
426. See Natapoff, supra note 1, at 1348 (“Driving on suspended license charges
are presumably triggered by the existence of DMV records.”).
427. Cf. Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67
N
OTRE DAME L. REV. 403, 482–83 (1992) (arguing that the adversarial trial system
often incentivizes the defendant not to testify even though she may be “the most
important witness in the case”).
428. See Hashimoto, supra note 8, at 489.
429. Id. at 490–91.
430. Id. at 495.
431. Id. at 485–86.
No. 3] Sixth Amendment Federalism 709
tripled.
432
In short, “[I]ndigent defense budgets nationwide have
not come close to keeping pace with the caseload increases
. . . .”
433
For states that are not meeting their federal constitutional ob-
ligations to appoint counsel in more serious cases, it makes lit-
tle sense to advocate for a broader right to counsel. If felony
defendants, or even capital defendants, cannot receive ade-
quate representation,
434
jurisdictions should prioritize those
problems rather than allocating money to fund appointed
counsel for minor misdemeanor cases. As Professor Hashimoto
argues, “In a world of limited indigent defense resources, states
must make a choice: They can provide minimal representation
to all indigent defendants, or they can deny counsel to defend-
ants facing low-level misdemeanor charges and focus those re-
sources on the representation of defendants facing charges of
the greatest severity.”
435
Every intake nurse who has ever had
to triage at a hospital understands that the latter option might
make more sense.
Sixth, mandating a broader right to counsel denies the States
flexibility to cater to their varying geographical needs. Justice
Brennan’s Scott dissent did not acknowledge this difficulty. For
him, Justice Rehnquist’s concern about imposing costs on the
States was not significant because “public defender systems
have proved economically feasible, and the establishment of
such systems to replace appointment of private attorneys can
keep costs at acceptable levels even when the number of cases
requiring appointment of counsel increases dramatically.”
436
But the public defender model is more realistic for cities,
which have large enough volumes of cases to enable economies
of scale. In contrast, it would be difficult for rural states and
localities to adapt, because they would likely have to rely on
appointments of private practitioners and at rates close enough
432. Id. at 484–85.
433. Id. at 485.
434. See, e.g., Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the
Worst Crime but for the Worst Lawyer, 103 Y
ALE L.J. 1835, 1836 (1994) (describing the
lack of effective lawyering for poor capital defendants).
435. See Hashimoto, supra note 8, at 513; see also B
ARTON & BIBAS, supra note 8, at
11 (“America will never be able to offer every criminal defendant facing any
amount of jail time a criminal defense lawyer equal to what the wealthy can af-
ford. But we can focus our effort on the cases that so desperately need our atten-
tion and care: serious felonies.”).
436. See Scott v. Illinois, 440 U.S. 367, 385 (1979) (Brennan, J., dissenting).
710 Harvard Journal of Law & Public Policy [Vol. 43
to what a lawyer could earn in private practice to ensure peo-
ple are willing to serve.
437
Indeed, this is how Iowa decided to
provide counsel for low-level criminal defendants after the Iowa
Supreme Court adopted the authorized imprisonment test.
Although estimating costs is difficult, an Iowa judge told me
that at least one town attempted to circumvent the ruling by
reclassifying several offenses as fine-only offenses, and that
magistrate judges in some rural counties were not informing
low-level defendants about their right to counsel. Relatedly, in
the legislative debates on whether to expand the scope of the
right to counsel in Colorado, one individual testifying against
the bill, a lawyer for a rural Colorado town, argued that the bill
would disproportionately affect rural jurisdictions.
438
Similarly,
an Ohio judge told me that the rural counties are less likely to
appoint counsel in misdemeanor cases because of cost.
439
Seventh, and counterintuitively, not requiring jurisdictions to
appoint counsel in low-level misdemeanor cases may actually
be better for defendants because it incentivizes the States not to
impose harsher penalties for minor offenses. As discussed
above, mandating the appointment of counsel for all criminal
cases may deter jurisdictions from enforcing low-level offenses.
It just might not be worth it for a state to devote taxpayer dol-
lars to punishing minor crimes. But low-level crimes exist for a
reason, so jurisdictions will want to enforce them, even if man-
datory appointment of counsel in all cases made it more expen-
sive. As one Florida judge explained, she uses her discretion
under Florida law to appoint counsel (rather than certify that
imprisonment will not be imposed to avoid the necessity of
appointing counsel) because she wants to preserve the option
to punish the defendant with jail time.
440
Thus, the legislature
could just increase the penalties available under the relevant
statutes.
By not forcing jurisdictions to pay for defense lawyers in minor
cases, one might be giving the States room to enforce low-level
statutes in a gentle and sensible way. The status quo may en-
437. Although judges can compel practitioners to serve, rates must be high
enough to avoid unconstitutional takings. See, e.g., State v. Lynch, 796 P.2d 1150,
1163 (Okla. 1990).
438. See supra note 250 and accompanying text.
439. Telephone Interview with Richard Frye, supra note 95.
440. Telephone Interview with Meredith Charbula, supra note 203.
No. 3] Sixth Amendment Federalism 711
courage mercy. Statistical evidence in Texas suggests that, in
2018, charges were dismissed in over 40 percent of the misde-
meanor cases where defendants were not entitled to counsel.
441
In Norristown, Pennsylvania, I observed one judge dismiss
most of his criminal docket in a morning, explaining that it is
enough that the defendants “came in and took responsibility
for their actions.” As another example, in Virginia, the prosecu-
tion routinely takes prison off the table for defendants charged
with driving with a suspended license.
442
The motivation for
this move, according to one local defense lawyer, is to facilitate
the easier and quicker disposition of these cases, usually in-
volving the payment of some sort of fine.
443
Additionally, a
Pennsylvania trial judge explained to me that counsel is rarely
appointed in summary offense cases because judges generally
issue minor fines, often far below the $300 maximum.
444
Several
scholars have also documented how the States are incentivized
to transform jailable offenses into finable ones to save money.
445
By denying lawyers to low-level offenders, the States might
provide quicker, cheaper, and gentler justice.
3. Assessment
In summary, there are strong policy arguments both for and
against a broader right to appointed counsel. On the one hand,
it is difficult to endorse a system where prosecutors routinely
face off against uncounseled defendants. In such instances, the
fairness argument made in Gideon seems strong. If the state is
willing to pay to prosecute such offenses, perhaps it should
pay for a defense lawyer. Moreover, the individual faces sub-
441. In 2018, Texas had around 1.1. million non-traffic misdemeanor cases in the
justice and municipal courts where the defendant could only be punished by fine,
and thus was not entitled to appointed counsel. See O
FFICE OF COURT ADMIN.,
supra note 7, at Court-Level 42, 50. About 40 percent of these cases were terminated
by dismissals. Id. at Court-Level 43, 51.
442. Telephone Interview with David Heilberg, supra note 77.
443. See id.
444. Telephone Interview with Albert Masland, supra note 88 (explaining how
judges in Cumberland County often issue fines of around $25 or $50 to cut poor
defendants some slack).
445. See Brown, supra note 176, at 7; Natapoff, supra note 111, at 1058
(“[E]liminating incarceration for misdemeanors looks like a kind of win-win: it
relieves defendants of the threat of imprisonment while saving the state millions
of dollars in defense, prosecution, and jail costs.”).
712 Harvard Journal of Law & Public Policy [Vol. 43
stantial consequences if convicted, both direct and collateral.
We can rightly worry that an innocent person could be convicted.
On the other hand, guaranteeing counsel in all criminal cases
could be costly and potentially ineffective. Many of these cases
are factually straightforward and rarely go to trial. Expanding
the right may mean little more than paying a lawyer to spend a
few minutes with an arrestee to advise her to take a canned
plea deal the prosecutor would probably be willing to offer any-
way. The only truly empirical article on this subject suggests
the States should hesitate. As Professor Hashimoto summarizes:
“Although it may appear that denying counsel to some mis-
demeanor defendants will prejudice their interests, empirical
evidence suggests that counsel in misdemeanor cases do not
typically provide significant benefits to many of their clients.”
446
As the above discussion indicates, there is no universal an-
swer in this policy debate.
447
And these “universal” considera-
tions may not matter as much as jurisdiction-specific ones. In
other words, whether more counsel should be guaranteed
should likely vary by state, and even within states. Two factors
seem particularly relevant.
First, is the jurisdiction failing to provide effective counsel, or
any counsel, in cases where the Supreme Court has held it is
required? If so, it makes little sense to recognize a broader
right. The right would be meaningless and make a mockery of
the law. Although Part II.D has emphasized the jurisdictions
that do not meet their legal obligations, it is worth remember-
ing that some jurisdictions do consistently provide counsel
when required to.
448
For example, a prominent defense attorney
insisted that Philadelphia consistently provides effective de-
fense lawyers in all criminal cases.
449
It makes more sense for
jurisdictions like these to expand the right to counsel.
Second, a jurisdiction’s geographical character may be essen-
tial. In general, urban jurisdictions can more easily offer a
446. See Hashimoto, supra note 8, at 463.
447. Contra Kitai, supra note 8, at 49 (arguing that it is “virtually impossible to
produce any principled competing interests” against requiring the appointment of
counsel in all criminal cases).
448. For example, an Iowa magistrate judge opined that, at least in her county,
lawyers are consistently appointed when they are supposed to be, and that the
quality of representation is pretty good. Telephone Interview with Lynn Rose,
supra note 101.
449. Interview with David Rudovsky, supra note 294.
No. 3] Sixth Amendment Federalism 713
broader right to appointed counsel because economies of scale
are more feasible in large cities than in rural areas. Wyoming
would face a heavier burden in guaranteeing counsel in all
criminal cases than Rhode Island. There will also be variation
within states. For example, an Iowa magistrate judge explained
to me that the relatively urban counties around Des Moines
and Iowa City have more easily handled the broader right to
appointed counsel mandated by the Iowa Supreme Court than
the rural counties.
450
A similar dynamic plays out in Ohio.
451
Of course, there are an infinite variety of factors that will in-
fluence a jurisdiction’s optimal policy outcome. Voters in one
jurisdiction might have different preferences than those in an-
other. Policymakers might want to focus more on healthcare or
infrastructure in some jurisdictions. The bar association in one
jurisdiction could be stronger than in another. This Article can-
not enumerate all the variables. The point is that there is no
one-size-fits-all solution. Allowing states and localities to ex-
periment with different approaches will allow policymakers to
account for their jurisdiction’s specific needs. This experimen-
tation is one of the great benefits of federalism.
452
IV. H
OW A BETTER FEDERALISM IS ESSENTIAL TO FIXING
MISDEMEANOR JUSTICE
Federalism is essential to building a better misdemeanor in-
digent defense system. The surface-level point made clear by
Part II is that we should not assume the States will be less gen-
erous than the U.S. Supreme Court in protecting the rights of
criminal defendants. Part IV.A emphasizes this point: the scope
of appointed counsel in misdemeanor cases is, on paper, a fed-
eralism success story. But Part IV.B suggests the reality is more
complicated. Our misdemeanor justice system, including indi-
gent defense, is broken in many jurisdictions across the United
States.
Moreover, our academic discourse is stuck in a rut, with
most scholars arguing that the status quo is a “travesty, and
demand[ing] that courts or legislatures spend more money on
450. Telephone Interview with Lynn Rose, supra note 101.
451. Telephone Interview with Richard Frye, supra note 95.
452. See McConnell, supra note 355, at 1494.
714 Harvard Journal of Law & Public Policy [Vol. 43
individual lawyers for individual cases.”
453
Scholars also con-
sistently demand that the Supreme Court force the States to
honor a broader right to counsel. Part IV.C therefore seeks to
reorient the conversation away from the Supreme Court and
the assumption that we should be trying to perfect the adver-
sarial system in misdemeanor cases. Instead, it suggests that
the States should use the room given to them by Scott to act as
laboratories of democracy. In particular, the States should con-
sider experimenting with three non-adversarial models: decli-
nation, diversion, and inquisitorial prosecution. Finally, Part
IV.D acknowledges the barrier of inertia, arguing our criminal
justice system desperately needs a better federalism.
A. A Federalist Success Story on Paper
There is an oft-repeated narrative that the States cannot be
trusted to protect individual rights, and that the Supreme
Court must therefore occupy the field if justice is to be done. As
Judge Sutton put it: “Convention suggests that only life-
tenured federal judges, not elected state court judges, only the
national government, not the States, can be trusted to enforce
constitutional rights.”
454
Anthony Lewis, who told the story of
Gideon and the Supreme Court’s right-to-counsel revolution in
Gideon’s Trumpet, apparently believed this.
455
That standard account has not played out in the right-to-
counsel context. As discussed in Part III.B, thirty-four states
voluntarily provide more protection than the Supreme Court
required in Scott. Even among the sixteen less protective states,
there is a diversity of procedural mechanisms that give judges
discretion to appoint counsel. This flexibility also allows judges
to decline to appoint counsel in cases where it makes sense, like
Virginia typically does in suspended license cases.
Additionally, there is no clear correlation between a state’s
approach to this issue and the state’s general political leanings.
Some conservative states, like Indiana and Texas, provide
broader protection than federally required. In contrast, some
progressive states, like Illinois and Connecticut, have elected
not to guarantee more protection than required by Scott.
453. See BARTON & BIBAS, supra note 8, at 7.
454. See S
UTTON, supra note 12, at 203.
455. See
LEWIS, supra note 13, at 211–12.
No. 3] Sixth Amendment Federalism 715
At first glance, this diversity of approaches is cause for cele-
bration. States have different characteristics that should affect
their decisions. It may be easier for urban jurisdictions to offer
an expanded entitlement than rural ones. It makes more sense
for states that have functioning right-to-counsel systems to offer
expanded entitlements than for states which already have a
rotten reputation in this area. There are many variables that
could lead states and localities to different results.
This Article thus provides partial reinforcement for Judge
Sutton’s argument that we should place more trust in the States
to protect individual rights. This area of the law, like those cov-
ered in Judge Sutton’s book, “provide[s] a healthy counter-
weight to the received wisdom” that is hostile to empowering
the States.
456
B. Hold the Applause
But this Article does not celebrate the status quo. Our mis-
demeanor justice system is failing. As discussed in Part II.D,
many states and localities are consistently failing to meet their
constitutional obligations. Accounts of routine failures to pro-
vide any counsel in some jurisdictions abound. Further, scholars
and practitioners have documented that states use a variety of
mechanisms, like indigence determination and waivers, to le-
gally cut down on the need to appoint counsel.
457
And even
when states spend the money to appoint counsel, it is not clear
how much good that is doing. Because defense lawyers in
many jurisdictions face crushing workloads, there has been a
mass movement toward plea bargaining. Reports of “meet ’em
and plead ’em” lawyering are now common, particularly in
misdemeanor cases.
458
And for the few misdemeanor cases that
do go to trial, our system is plagued by complaints of ineffec-
tive assistance of counsel. Anecdotal accounts of defense law-
yers being “asleep, drunk, unprepared, or unknowledgeable”
456. See SUTTON, supra note 12, at 204.
457. For example, judges in Virginia allegedly push defendants to waive their
right to appointed counsel quite frequently. See, e.g., Telephone Interview with
David Heilberg, supra note 77. Of course, defendants may have good incentives to
waive counsel, especially because many states charge even indigent defendants
fees and try to recoup costs. See Telephone Interview with Edward Hogshire,
Judge, Charlottesville Circuit Court (Feb. 26, 2019).
458. See B
ARTON & BIBAS, supra note 8, at 28 (discussing this problem); Hashimoto,
supra note 8, at 473–74 (discussing the extent of the problem).
716 Harvard Journal of Law & Public Policy [Vol. 43
abound.
459
The system is failing, creating a grave risk that mil-
lions of Americans every year will confront an inefficient, in-
timidating, frustratingly bureaucratic, and inaccurate system of
misdemeanor justice.
Additionally, our discourse on how to fix these problems is
“stuck in a Groundhog Day loop.”
460
The vast majority of scholars
writing about misdemeanor justice argues that the Supreme
Court should overrule Scott and require appointed counsel in
all criminal cases.
461
As for existing unfunded mandates, a cho-
rus of scholars has demanded that states and localities provide
more money for indigent defense to make our promised adver-
sarial system a reality.
462
In tandem, a group of devoted advo-
cates has brought systemic litigation throughout the country
seeking court orders for more allocations of resources.
463
In
other words, the stereotypical solution is: more money, more
lawyers, more justice.
464
All of these accounts focus on perfect-
ing our adversarial system, on making Gideon a reality in all
criminal cases.
Even if the Supreme Court did overrule Scott, there are rea-
sons to be cynical that it would make any difference. It is easy
to say states should allocate more money to indigent defense,
and much harder to actually lobby a state legislature to make it
happen. The massive number of misdemeanors processed every
year would require funds unlikely to be allocated.
465
And it
would also require a herculean effort from judges, prosecutors,
459. See, e.g., Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Re-
view of Ineffective Assistance of Counsel, 2004 U
TAH L. REV. 1, 1.
460. See B
ARTON & BIBAS, supra note 8, at 7.
461. See supra note 8.
462. For a particularly thoughtful example of an article falling into this category,
see Backus & Marcus, supra note 293. Professors Mary Sue Backus and Paul Marcus
argue that “drastic underfunding” was and is “a root cause of the intractable
problems plaguing the patchwork of state indigent defense systems in the United
States.” Id. at 1578–80.
463. See, e.g., Kuren v. Luzerne County, 146 A.3d 715, 723–25 (Pa. 2016).
464. Cf. Benjamin H. Barton & Stephanos Bibas, Triaging Appointed-Counsel
Funding and Pro Se Access to Justice, 160 U.
PA. L. REV. 967, 968 (2012) (“If appoint-
ing some lawyers is good, then appointing more lawyers must be better. At least
that seems to be the logic of the civil Gideon movement . . . .”).
465. See, e.g., Ian Weinstein, The Adjudication of Minor Offenses in New York City,
31 F
ORDHAM URB. L.J. 1157, 1158 (2004) (“American lower criminal courts have
long been structurally incapable of adjudicating legal and factual disputes in the
vast majority of the cases that come before them.”).
No. 3] Sixth Amendment Federalism 717
and defense lawyers, all of whom are incentivized to quickly
dispose of misdemeanor cases.
466
Rather than make that effort,
it seems more likely that all three groups would push for more
waivers of the right to counsel, something that is already used
to circumvent the Supreme Court’s requirements.
467
Some advocates are trying to improve misdemeanor justice
through systemic litigation, but problems plague these efforts.
Such suits are difficult to bring because “they can be incredibly
protracted and expensive.”
468
Because it is challenging to liti-
gate highly individualized claims of ineffective assistance of
counsel via aggregate litigation, mass or class actions are only
viable in those states and localities where counsel is routinely
denied altogether.
469
Standing doctrines may stand in the way
as well. These lawsuits are hard to win, and even if litigants are
successful, it is not clear how much relief they will get for their
efforts.
Louisiana illuminates the problem. In 1966, Louisiana estab-
lished its public defender system, relying primarily on local
funding and oversight.
470
In 1993, the Louisiana Supreme Court
rebuked the funding system, established a presumption of inef-
fective assistance of counsel in part of New Orleans, and
threatened to take more intrusive measures if the legislature
did not act.
471
When the legislature did not act quickly, in 1994,
466. See HEUMANN, supra note 413, at 38.
467. For example, some states have figured out how to effectively issue sus-
pended sentences without appointing counsel. One Florida prosecutor explained
to me that the most common sentence for an uncounseled defendant who pleads
guilty to his first DUI is a probationary sentence, with jail risked if the defendant
violates the probation terms. See Telephone Interview with L.E. Hutton, supra note
93. The reason this practice does not violate Shelton is because judges ensure that
defendants waive their right to counsel, thus preventing a constitutional problem
if the defendant is later imprisoned for violating the probation conditions. See id.
468. See Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33
N.Y.U.
REV. L. & SOC. CHANGE 427, 449 (2009).
469. See, e.g., Hurrell-Harring v. State, 930 N.E.2d 217, 221 (N.Y. 2010)
(“[E]ffective assistance is a judicial construct designed to do no more than protect
an individual defendant’s right to fair adjudication; it is not a concept capable of
expansive application to remediate systemic deficiencies.”).
470. A
NDREA M. MARSH, NAT’L ASS’N OF CRIMINAL DEF. LAWYERS, STATE OF
CRISIS: CHRONIC NEGLECT AND UNDERFUNDING FOR LOUISIANA’S PUBLIC DEFENSE
SYSTEM 9 (2017), https://www.nacdl.org/getattachment/dfc14b97-099b-45d6-89e6-
d7e9b652feac/state-of-crisis-chronic-neglect-and-underfunding-for-louisiana-s-
public-defense-system-report-final.pdf [https://perma.cc/8NJ6-V2XB].
471. Id. at 10; State v. Peart, 621 So. 2d 780, 783 (La. 1993).
718 Harvard Journal of Law & Public Policy [Vol. 43
the Louisiana Supreme Court ordered the creation of the
Louisiana Indigent Defense Assistance Board.
472
Although the
legislature begrudgingly codified the Board, it only allocated
five million dollars to it, even though twenty million were
needed.
473
In 2005, the Louisiana Supreme Court again rebuked
the legislature, threatened to halt prosecutions and called for
reform.
474
In 2007, the legislature authorized a new public de-
fense board and authorized more funding.
475
But by 2010, twenty-
eight of Louisiana’s forty-two defender offices were financially
underwater.
476
Even after dramatic cost-cutting measures and
serious layoffs, Louisiana’s defender offices were still running
a collective deficit of three million dollars in 2015.
477
By 2016,
thirty-three out of forty-two defender officers had formally begun
restricting services.
478
In response, Louisiana judges continued
to scold the legislature, began forcing private attorneys to rep-
resent defendants, and forced large numbers of defendants to
wait in pretrial detention until counsel could be appointed.
479
The crisis is ongoing.
The Louisiana story should not be that surprising. The courts
have limited power within state governments. Separation-of-
powers doctrines in various states will limit what courts can
order legislatures to do. And even if there are not formal limits,
judges will hesitate to wade into the appropriations process.
Indeed, these separation-of-powers limitations have repeatedly
frustrated attempts by courts to enforce positive state-law
rights.
480
And although judges could take more drastic steps
like halting prosecutions, they will likely hesitate to do so, par-
ticularly if they are elected by voters, many of whom dislike
“soft on crime” judges.
In light of these practical considerations, we should stop to
question whether right-to-counsel advocates are supporting the
right goals. The allure of the Gideon vision is undeniable. We
472. MARSH, supra note 470, at 10.
473. Id. at 11.
474. See State v. Citizen, 898 So. 2d 325, 336–39 (La. 2005).
475. M
ARSH, supra note 470, at 11–12.
476. Id. at 14.
477. See id. at 16.
478. Id.
479. See id. at 17.
480. See S
UTTON, supra note 12, at 32–35.
No. 3] Sixth Amendment Federalism 719
would undoubtedly do great justice if we provided effective
counsel and an effective adversarial system in all cases, often
including a jury trial. On paper, the “accused has every ad-
vantage” in the American criminal justice system.
481
But this
vision is not real in many parts of the country. In a large per-
centage of cases, for legal and illegal reasons, no counsel is
provided. In the vast majority of cases, there is no real adver-
sarial system.
C. Pursuing New Ideas Within Our Federalist System
So maybe we should rethink the adversarial system, at least
in some cases. This Part proposes, but does not endorse, alter-
natives to the adversarial system for low-level crimes. None of
them involve the appointment of counsel. This list is not ex-
haustive, and some scholars have proposed other interesting
ideas.
482
My ambition is not to endorse any single approach, but
to highlight the necessity of new ideas and the importance of
using our federalist system to try them out. Federalism could
help break the current “Groundhog Day loop” of rehashing the
same arguments about the right to counsel.
1. Non-Prosecution or Reclassification
Some jurisdictions could simply decriminalize or stop en-
forcing low-level crimes. Indeed, several scholars have argued
for decriminalization.
483
This approach would have several
advantages.
First, non-prosecution of low-level offenses allows law en-
forcement to prioritize more serious offenses. Especially in urban
jurisdictions, which are rightly focused on punishing felons, it
may not be feasible for the police to vigorously enforce all mis-
481. See United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923) (Hand, J.).
482. See, e.g., B
ARTON & BIBAS, supra note 8, at 110–37 (offering several interest-
ing ideas, including the use of online dispute resolution and non-lawyer media-
tion to quickly resolve some low-level cases); Natapoff, supra note 1, at 1372–74
(suggesting we raise the evidentiary standard for police to arrest suspects for low-
level crimes); John Rappaport, Criminal Justice, Inc., 118 C
OLUM. L. REV. 2251
(2018) (suggesting the conditions under which it may make sense to delegate
criminal justice in certain cases to a privately run system that imposes penalties on
violators).
483. See, e.g., Kitai, supra note 8, at 57; Lucas, supra note 8, at 109.
720 Harvard Journal of Law & Public Policy [Vol. 43
demeanor laws.
484
For example, California reclassified low-
level drug possession as a civil offense rather than a criminal
one.
485
As then-Governor Arnold Schwarzenegger explained,
“In this time of drastic budget cuts, prosecutors, defense attor-
neys, law enforcement, and the courts cannot afford to expend
limited resources prosecuting a crime that carries the same
punishment as a traffic ticket.”
486
Second, it may not be efficient for the States to enforce these
low-level offenses. Prosecutors are unlikely to seek prison sen-
tences in many of these cases. For the few that go to trial, one
can question whether it is efficient for the state to pay a prose-
cutor, judge, and perhaps a defense lawyer for at least several
hours of time to secure a small fine that provides little deter-
rence. As one Pennsylvania trial judge bluntly put it, “you can’t
usually justify the cost of trial for minor offenses like public
intoxication.”
487
Similarly, Professor Milton Heumann docu-
mented that most judges, prosecutors, and defense lawyers feel
that these cases are “not worth extensive time in trial or even in
plea negotiations.”
488
Professor Robert Boruchowitz has estimated
that the States could save billions per year by reclassifying
some misdemeanors as civil infractions.
489
Third, there may be better ways to enforce these low-level of-
fenses than criminal prosecution. Professor David Rudovsky,
for example, suggests that we treat low-level offenses more like
traffic offenses.
490
At a recent hearing on the subject, Senate
484. See, e.g., Memorandum from Kenneth P. Thompson, Dist. Attorney, Kings
County, New York, to District Attorney’s Office for King’s County, New York,
Policy Regarding the Prosecution of Low-Level Possession of Marihuana Cases 1–2
(July 8, 2014), http://nylawyer.nylj.com/adgifs/decisions14/070914policy.pdf [https://
perma.cc/7MP2-82D2] (announcing a general policy of non-prosecution for mari-
juana possession to ensure, in part “the limited resources of this Office are allocated
in a manner that most enhances public safety”).
485. Act of Sept. 30, 2010, ch. 708, 2010 Cal. Stat. 3994.
486. See Letter from Arnold Schwarzenegger, Governor, California, to Members,
Cal. State Senate (Sept. 30, 2010), http://www.salem-news.com/articles/october012010/
schwarzenegger-marijuana.php [https://perma.cc/8AX6-5A4F].
487. See Telephone Interview with Albert Masland, supra note 88.
488. See H
EUMANN, supra note 413, at 38.
489. See Protecting the Constitutional Right to Counsel for Indigents Charged with
Misdemeanors: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015) [here-
inafter Misdemeanor Hearing] (statement of Robert C. Boruchowitz, Professor, Seattle
University School of Law), https://www.judiciary.senate.gov/imo/media/doc/05-
13-15%20Boruchowitz%20Testimony.pdf [https://perma.cc/EBP2-JQ4R].
490. See Interview with David Rudovsky, supra note 294.
No. 3] Sixth Amendment Federalism 721
Judiciary Committee Chairman Chuck Grassley made a similar
suggestion.
491
You would get a ticket, but the offenses would
not be deemed criminal. It is worth acknowledging that the po-
lice already enforce some low-level public order offenses by
means other than criminal prosecution. The classic example is
drunk and disorderly conduct. The police rarely enforce it. And
if someone is particularly obnoxious, the police are more likely
to hold the person in jail over night until he sobers up than to
charge him with an offense.
492
One counterargument lies in broken windows policing theory.
In brief, that theory suggests that failure to curb disorder and
low-level crimes will result in the proliferation of more serious
crimes.
493
As James Wilson and George Kelling put it in their
famous article: “[A]t the community level, disorder and crime
are usually inextricably linked, in a kind of developmental se-
quence. Social psychologists and police officers tend to agree
that if a window in a building is broken and is left unrepaired,
all the rest of the windows will soon be broken.”
494
Broken windows theory has proven both very influential and
very controversial.
495
This Article does not express either agree-
ment or disagreement with it. But to the extent that the theory
is persuasive, it counsels against a systemic refusal to enforce
public order laws.
Furthermore, the public may have a strong interest in seeing
low-level offenses enforced. Philadelphia’s decision not to
prosecute petty larceny has earned severe criticism, as it arguably
puts shop owners at the mercy of petty thieves.
496
Shoplifting
491. See Misdemeanor Hearing, supra note 489 (statement of Sen. Chuck Grassley,
Chairman, S. Comm. on the Judiciary), https://www.judiciary.senate.gov/imo/media/
doc/05-13-15%20Grassley%20Statement1.pdf [https://perma.cc/7MP6-BHPF].
492. See Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry,
Race, and Disorder in New York City, 28 F
ORDHAM URB. L.J. 457, 476 (2000) (finding
that many order maintenance arrests resulted in a night in jail and then release).
493. See George L. Kelling & James Q. Wilson, Broken Windows: The police and
neighborhood safety, A
TLANTIC MONTHLY, Mar. 1982, at 29.
494. Id.
495. See, e.g., Nick Malinowski, Useful or Not, Broken Windows Policing Remains
Morally Indefensible, H
UFFINGTON POST (Dec. 6, 2017), https://www.huffingtonpost.com/
nick-malinowski/useful-or-not-broken-wind_b_10742902.html [https://perma.cc/
47EN-SK7B].
496. See Ben Austen, In Philadelphia, a Progressive D.A. Tests the Power—and
Learns the Limits—of His Office, N.Y.
TIMES MAG. (Oct. 30, 2018), https://nyti.ms/
2CPjBOp [https://perma.cc/5KJ2-DPJ6] (“[P]rosecutors were instructed to handle
722 Harvard Journal of Law & Public Policy [Vol. 43
has been called the “nation’s most expensive crime,”
497
and re-
tailers’ losses from shoplifting were around eighteen billion
dollars nationwide in 2016.
498
Even with something that sounds
relatively harmless, like drunk and disorderly conduct, parents
might not want to raise children in a neighborhood where ob-
noxious drunks are given free rein to wander the streets at
night.
2. Diversion
A second option is to offer low-level offenders diversion
agreements. Agreements can be reached either before filing
criminal charges (a deferred charge agreement) or after (a de-
ferred prosecution agreement). Under such terms, a defendant
would not be brought to trial if he complied with the terms of
the agreement. Such terms could include a commitment not to
commit any more crimes, restitution, or community service.
Of course, diversion is common in many jurisdictions, and it
is used in at least 9 percent of criminal cases.
499
It is often used
for drug offenses, and successful completion of a rehabilitation
program is often required by diversion agreements.
500
In that
context, diversion agreements are seen as particularly promis-
ing because the system hopes to prevent future crime by help-
ing people stop using drugs. It is not clear whether diversion
offers similar benefits for, say, petty larceny offenders. Diver-
sion would not “cure” offenders. And it is questionable whether
it would deter the commission of future offenses, because it
any retail theft with a value of less than $500 with a citation, the lowest possible
offense under Pennsylvania law.”).
497. See Susan Konig, Helping Shoplifters to Reform, N.Y.
TIMES (Sept. 29, 1996),
https://nyti.ms/3bOznIr [https://perma.cc/T42W-7MZK].
498. See R
ICHARD HOLLINGER, NAT’L RETAIL FED’N, 2017 NATIONAL RETAIL SE-
CURITY
SURVEY 6, 8 (2017), https://cdn.nrf.com/sites/default/files/2018-10/NRSS-
Industry-Research-Survey-2017.pdf [https://perma.cc/MU4A-UUQ8] (stating in-
ventory shrinkage accounts for $48.9 billion, of which shoplifting is accountable
for 36 percent).
499. ACLU
KANSAS, CHOOSING INCARCERATION: KANSAS PROSECUTORS’ RE-
FUSAL TO
USE DIVERSION AND THE COST TO COMMUNITIES 8–9 (2018), https://
www.aclukansas.org/sites/default/files/field_documents/choosing_incarceration_-_
aclu_report_on_diversion_in_kansas_-_updated_january_2018__0.pdf [https://
perma.cc/NF2D-PPHE].
500. See C
TR. FOR PRISON REFORM, DIVERSION PROGRAMS IN AMERICA’S CRIMINAL
JUSTICE SYSTEM 5–6 (2015), https://centerforprisonreform.org/wp-content/uploads/
2015/09/Jail-Diversion-Programs-in-America.pdf [https://perma.cc/K4CF-FSLH].
No. 3] Sixth Amendment Federalism 723
may be impracticable for law enforcement to monitor compli-
ance with such agreements. Undoubtedly, most misdemeanors
go undetected.
However, states could use diversion agreements to impose
noncriminal punishments on offenders. Florida, for example,
offers deferred prosecution for many of its misdemeanors (in-
cluding some traffic offenses), whereby defendants attend classes,
pay restitution, and do community service.
501
Seen that way
(and not relying on rehabilitation), this option could make
sense for some jurisdictions. The state is spared the expenses of
prosecution. The defendant benefits by being spared the stigma
and collateral consequences of a criminal conviction. At the
same time, this option dodges the most serious objections
against the previous option: it does not abdicate enforcement of
low-level criminal offenses.
3. An Inquisitorial System
Unlike the previous two suggestions, this third proposal
keeps criminal convictions, but without a traditional adversarial
process. Instead, some states should consider experimenting
with an inquisitorial system.
Inquisitorial legal systems exist throughout the world. In
fact, they are far more common than adversarial ones.
502
In
brief, inquisitorial systems rely more heavily on judges to de-
velop the factual record than adversarial ones. In inquisitorial
proceedings, judges develop the record by interrogating the
involved parties.
503
Although lawyers can certainly play a role,
that role is less important than in an adversarial system.
In American legal discourse, the inquisitorial system has
long been considered heretical. Ever since abuses by the judges
of the Stuart kings in seventeenth century England, the Anglo-
American system has distrusted inquisitorial processes.
504
The
501. Telephone Interview with L.E. Hutton, supra note 93.
502. B
ARTON & BIBAS, supra note 8, at 152 (“Most courts in the world, including
virtually all of the courts in continental Europe and most of the courts in Asia,
South America, and Africa, run on an inquisitorial system.”).
503. Id. at 151.
504. See Langbein, supra note 339, at 269. Although the jury was undoubtedly a
powerful institution in early American history, it is worth acknowledging that
some evidence points to broad judicial power in certain instances. See, e.g., Renée
Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42
W
M. & MARY L. REV. 195, 213–14 (2000) (describing the common practices of judges
724 Harvard Journal of Law & Public Policy [Vol. 43
Founders also distrusted judges because of their association
with the English colonial administration.
505
To counter judicial
power, our Constitution enshrines the right to a jury trial both
in Article III and the Sixth Amendment.
506
Indeed, it is the only
constitutional right enshrined in both the original Constitution
and the Bill of Rights. Historically, the States long resisted the
move toward optional bench trials.
507
But perhaps that extreme distrust is no longer rational.
Continental Europe has managed to keep trials because of the
inquisitorial system’s efficiency, whereas we have lost them.
508
Moreover, our system largely already is inquisitorial as admin-
istrative proceedings routinely proceed in an inquisitorial
manner.
509
In the federal system, entitlement to Social Security
Disability, veterans’ benefits, and asylum are all largely deter-
mined through a partially inquisitorial process.
510
The Federal
Social Security Disability system is the largest system of adju-
dication in the western world.
511
State administrative agencies
across the country likewise use inquisitorial processes to de-
termine eligibility for various public benefits.
512
Small claims
courts around the country also use these procedures. Many
Americans are most familiar with the inquisitorial system
through television shows like Judge Judy and The People’s
Court.
513
commenting on evidence to juries in both civil and criminal cases in early American
history).
505. See Langbein, supra note 339, at 269.
506. U.S. C
ONST. art. III, § 2, cl. 3; id. amend. VI.
507. See Langbein, supra note 339, at 269; see also Cancemi v. People, 18 N.Y. 128,
138 (1858) (disallowing defendants to waive the presence of even one juror’s pres-
ence, lest the “ancient and invaluable institution of trial by jury” be threatened).
508. See Langbein, supra note 339, at 267.
509. See, e.g., B
ARTON & BIBAS, supra note 8, at 151–52; Michael Asimow, Inquisi-
torial Adjudication and Mass Justice in American Administrative Law, in T
HE NATURE
OF
INQUISITORIAL PROCESSES IN ADMINISTRATIVE REGIMES: GLOBAL PERSPECTIVES
93, 93–94 (Laverne Jacobs & Sasha Baglay eds., 2013).
510. See Asimow, supra note 509, at 98–108.
511. See J
ERRY J. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY
DISABILITY CLAIMS 18 (1983).
512. For example, Pennsylvania determines eligibility for unemployment bene-
fits primarily through an inquisitorial system. See 43 P
A. STAT. AND CONS. STAT.
ANN. § 753 (West 2020). Indeed, I advocated on behalf of pro bono clients as a law
student during some of these hearings. But many individuals proceed through
this system pro se.
513. See B
ARTON & BIBAS, supra note 8, at 151.
No. 3] Sixth Amendment Federalism 725
One could reply that criminal proceedings are different be-
cause they involve higher stakes, but that is not always true.
514
Denial of unemployment benefits by a state agency can pro-
duce devastating collateral consequences, including a spiral
into poverty. For asylum claimants appearing before hearing
officers, a rejection may well lead to eventual deportation. A
criminal conviction, attended by some punishment and later
collateral consequences, may be similar in severity to many
matters we already determine through partially inquisitorial
proceedings.
Besides, in states where there is no right to counsel in low-
level misdemeanor cases, practitioners suggested that judges
by necessity act in a more inquisitorial fashion. For example,
one Iowa magistrate judge explained that, before Iowa adopted
the authorized imprisonment test, she had to enforce the rules
of evidence against the prosecution, because one cannot expect
the defendant to understand the rules.
515
As she put it, she “had
to be careful to vindicate the rights of defendants when the de-
fendant could not recognize them.”
516
Because trials with un-
counseled defendants frequently occur in some jurisdictions,
our misdemeanor system is already by necessity partially
inquisitorial.
A non-adversarial system would have some benefits. First, it
would save the States money (a helpful argument to make
when seeking reforms), sparing them the expense of paying a
prosecutor and a defense lawyer. Second, a speedier system
would enable defendants to actually insist on their trial right.
For those detained pretrial, it might not make a difference. But
for non-jailed individuals who just want to “get it over with,”
the prospect of a quick hearing might help an innocent defendant
persevere. That, in turn, would help protect the innocent and
produce more acquittals than our system currently obtains. Third,
although American judges would initially be uncomfortable
514. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 1229 (2018) (Gorsuch, J., con-
curring in part and concurring in the judgment) (“[T]oday’s civil laws regularly
impose penalties far more severe than those found in many criminal statutes[.]”).
515. Telephone Interview with Lynn Rose, supra note 101.
516. Id.
726 Harvard Journal of Law & Public Policy [Vol. 43
performing inquisitorial functions,
517
they might actually pro-
vide more assistance to defendants than many state-appointed
lawyers currently do. And from the defendant’s perspective,
this system would be an improvement on the prospect of going
to trial without a lawyer in a jurisdiction where the trial judge
will not help you.
Of course, there are undoubtedly disadvantages to the in-
quisitorial system.
518
Just one is that it places a tremendous
amount of faith in judges, something at odds with our nation’s
historical distrust of unchecked judicial power.
519
Explicitly
shifting toward an inquisitorial system could also lead to the
weakening of other rights associated with the adversary sys-
tem. For example, it could undermine the defendant’s right not
to self-incriminate by incentivizing her to testify at trial.
520
State
courts could also undertake less sweeping inquisitorial-style
reforms, like revising court rules to encourage its trial judges to
assist pro se litigants.
521
But it could be worthwhile for a state to
try out an inquisitorial mode of adjudication, serving as a la-
boratory of democracy.
Constructing a non-adversarial adjudicative system for low-
level misdemeanors is no small task, and its feasibility will
vary widely depending on the state. Ironing out the precise pa-
rameters of such a system is beyond the scope of this Article.
Rather, anticipating the possibility of future scholarship, I will
lay out some specific issues that a design proposal must take
into account.
517. A state could cultivate expertise by assigning particular judges to only
handle inquisitorial cases or by offering continuing legal education to its judges.
See, e.g., B
ARTON & BIBAS, supra note 8, at 154.
518. See, e.g., id. at 152–53.
519. See, e.g., Blakely v. Washington, 542 U.S. 296, 305–08 (2004) (discussing the
Framers’ distrust of unchecked judicial power).
520. See Renée Lettow Lerner, The Intersection of Two Systems: An American on
Trial for an American Murder in the French Cour d’Assises, 2001 U.
ILL. L. REV. 791,
824–25 (describing how the French inquisitorial trial system incentivizes defend-
ants to take the stand and testify).
521. See B
ARTON & BIBAS, supra note 8, at 145–50 (discussing simple ways that
judges could make proceedings easier for pro se litigants, like relaxing procedural
and evidentiary rules).
No. 3] Sixth Amendment Federalism 727
a. Jury Trial
The role of the jury trial in misdemeanors is understudied.
The U.S. Supreme Court has held that the Sixth Amendment
requires the States to offer jury trials whenever the defendant is
charged with an offense jailable for more than six months.
522
As
with the right to counsel, that means that the Supreme Court
has given the States a substantial amount of room to experi-
ment beyond the jury trial. Because of the logistical burdens of
convening juries, it could be difficult to incorporate juries into a
non-adversarial system for misdemeanors. One can question
whether defendants would exercise a broader jury trial right. A
judge in Ohio, where defendants have a jury trial right for all
jailable offenses, explained that the right is almost never exer-
cised in misdemeanor cases.
523
However, the law may require jury trials. Scholars have is-
sued serious challenges to the Supreme Court’s jury trial juris-
prudence.
524
Considering the Anglo-American legal system’s
strong tradition of providing juries, the federal constitutional
right to a jury trial may cover a broader range of misdemeanors
than is currently recognized.
525
Moreover, all state constitutions
offer a jury trial right, and around 80 percent of the states, at
least theoretically, guarantee a broader jury trial right than the
U.S. Supreme Court.
526
b. Plea Bargaining
Anyone designing a system of misdemeanor adjudication
must consider the role of plea bargaining. Although empirical
work is limited, the importance of plea bargaining in resolving
misdemeanors is broadly recognized.
527
Indeed, some have
identified a link between greater procedural protections, like
522. See Baldwin v. New York, 399 U.S. 66, 69 (1970).
523. Telephone Interview with Richard Frye, supra note 95.
524. See, e.g., Murphy, supra note 103.
525. For example, New Jersey does not guarantee a jury trial to all DUI defend-
ants. See State v. Denelsbeck, 137 A.3d 462, 477 (N.J. 2016). And this rule clashes
with the tradition of using juries for offenses to which the community attaches
moral blameworthiness. See Murphy, supra note 103, at 135–39. One can argue
under the Due Process Clause or, alternatively, the Privileges or Immunities
Clause. U.S. CONST. amend. XIV, § 1.
526. See Murphy, supra note 103, at 171–73.
527. See Bibas, supra note 306, at 1118.
728 Harvard Journal of Law & Public Policy [Vol. 43
the right to counsel, and an increased rate of plea bargaining.
528
Anecdotally, my conversations with practitioners support that
link.
529
The relationship between procedural protections and
plea bargaining deserves careful academic attention. And those
proposing a broader right to counsel should consider the pos-
sibility that plea bargaining will become more common as the
States are incentivized to avoid the costs of prosecution through
quick deals, perhaps offered en masse, as sometimes occurs in
Florida.
530
c. Dual Trial Court Systems
Perhaps the most bizarre part of America’s current system
for adjudicating misdemeanors is the structure of our state
courts. There is an extraordinary diversity of structures. Only a
few states are structured like the federal courts, with one trial
court, an intermediate appellate court, and a supreme court. The
vast majority of states have at least two trial courts. Maryland’s
structure is typical.
531
At the bottom of the hierarchy are the
District Courts, which handle misdemeanors and small-value
civil cases.
532
If a misdemeanor defendant is convicted at the
District Court, he can appeal to the Circuit Court.
533
The Circuit
Courts are the trial courts of general jurisdiction, and felonies
and serious civil cases start there.
534
Oddly, the defendant ap-
pealing from the District Court is entitled to a de novo review
of the case by the Circuit Court.
535
And from there, the defend-
ant can appeal up to the intermediate appellate court and, per-
haps, the state supreme court.
536
528. Cf. Stephen J. Schulhofer, Is Plea Bargaining Inevitable?, 97 HARV. L. REV.
1037 (1984) (endorsing a system where bench trials are offered to reduce the dom-
inance of plea bargaining).
529. See, e.g., Telephone Interview with Lynn Rose, supra note 101 (arguing that
the rate of plea bargaining rose dramatically in Iowa after the Iowa Supreme
Court expanded the right to counsel in 2016).
530. See, e.g., Telephone Interview with Scott Richardson, supra note 94 (assert-
ing misdemeanor plea bargains are negotiated in “cattle calls”).
531. See Maryland, supra note 103.
532. See id.
533. See id.
534. See id.
535. See Kleberg v. State, 568 A.2d 1123, 1124 (Md. 1990).
536. See Maryland, supra note 103.
No. 3] Sixth Amendment Federalism 729
The value of a dual trial court system is open to question.
Why should a misdemeanor defendant get two de novo exam-
inations of his case, especially when a felony defendant only
gets one trial? Perhaps states are concerned, for good reason,
about the accuracy of highly informal proceedings when there
is no right to counsel. Historically, this system appears to have
arisen in medieval England to avoid the necessity of convening
juries for low-level crimes.
537
And a fair number of states reflect
that tradition by guaranteeing a jury trial for a relatively broad
set of cases, but only offering a jury at the second trial.
538
d. Appeals
Closely related to the dual trial court system is the question
of appeals. How should appellate review work for an inquisi-
torial proceeding? Perhaps review should be de novo or at least
more searching than for a jury trial. With fewer procedural pro-
tections at the initial adjudication, stronger appellate review
could allay due process concerns.
But one must also consider the cost and potentially limited
benefits of robust appellate review for low-level misdemeanors.
As Justice Jackson once remarked in the federal habeas context,
“reversal by a higher court is not proof that justice is thereby
better done.”
539
And defendants may be unlikely to take ad-
vantage of appeal rights if they have been merely fined a small
amount. That dynamic appears to play out in the status quo. In
states with two trial courts and a de novo appeal, limited statis-
tical evidence suggests that defendants almost never take that de
novo appeal.
540
Stand-alone articles could undoubtedly address
the reasons for that data, and the insights gained from such
studies could inform the task of designing a misdemeanor ad-
judication system.
537. For the most important scholarship on this issue, see Felix Frankfurter &
Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial
by Jury, 39 H
ARV. L. REV. 917 (1926).
538. See, e.g., Georgia, C
T. STATS. PROJECT, http://www.courtstatistics.org/Other-
Pages/State_Court_Structure_Charts/Georgia.aspx [https://perma.cc/J9SW-GVTE]
(last visited Feb. 18, 2020).
539. See Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the
result).
540. King & Heise, supra note 89, at 1940.
730 Harvard Journal of Law & Public Policy [Vol. 43
e. Personnel
Another difficult question is who should adjudicate misde-
meanors. A fair number of states do not use lawyers to staff
their lower trial courts. Texas, for example, does not require its
justice and municipal court judges to be lawyers.
541
This prac-
tice raises serious system design questions. And scholars should
be asking whether non-lawyers are running misdemeanor ad-
judications in a manner consistent with the rule of law rather
than the rule of men. Can non-lawyers properly enforce the
rules of evidence, interpret statutes,
542
and guarantee a defend-
ant’s constitutional rights? Personally, I witnessed misdemeanor
trials in different parts of Pennsylvania conducted by non-
lawyers in a highly informal fashion that varied greatly de-
pending on the particular judge. Some of these proceedings
took place without oaths, formal evidence, or any lawyers in
the room. Although this phenomenon has received limited at-
tention, the California Supreme Court forced a transition away
from a dual trial court system after holding that non-lawyer
judges presiding over criminal proceedings violated due pro-
cess.
543
This topic certainly needs more scholarly attention.
D. A Better Federalism
This Article does not endorse a one-size-fits-all approach to
misdemeanors. This Part has introduced some alternatives to
an adversarial adjudication system: non-prosecution, diversion,
and an inquisitorial system. With an inquisitorial system in
particular, the previous Part introduced several difficult varia-
bles that would need to be addressed. This Part’s primary goal
is to raise new questions for study and to reorient the conversa-
tion away from convincing the Supreme Court to force a uni-
form approach on fifty diverse states. We need experimenta-
tion. Federalism, rather than a universally mandated procedure
frozen in place, is the key for enabling innovation in the right-
to-counsel area.
541. See E-mail from Emily Miskel, Dist. Judge, 470th Tex. Judicial Dist., to au-
thor (Jan. 25, 2019, 5:17 PM EST) (on file with author).
542. See Ethan J. Leib, Localist Statutory Interpretation, 161 U.
PA. L. REV. 897
(2013) (asking this question).
543. See Gordon v. Justice Court, 525 P.2d 72, 79 (Cal. 1974).
No. 3] Sixth Amendment Federalism 731
But federalism may not be sufficient. Federalism will not in-
evitably lead to innovative solutions to difficult problems. Iner-
tia and herd mentality are powerful forces that will counteract
innovation. When suggesting to practitioners various new ideas
for adjudicating misdemeanors, like an inquisitorial system,
many responded that these ideas were not feasible. When I
asked why, I repeatedly got the same response: “That’s just not
the way our system works.” Inertia and tradition are powerful
forces.
544
Further, lawyers and bar associations have anti-
innovation reputations, perhaps because lawyers are benefit-
ting from the status quo.
545
So letting federalism run its course will often not be good
enough to spur innovation among the States. But that is where
academics and legal crusaders can help. By proposing, advo-
cating, and lobbying for new ideas in a single state, they can
help make innovative reform a real possibility. If scholars con-
cerned about the state of misdemeanor justice in America can
shift their focus and move beyond demanding more one-size-
fits-all solutions from the Supreme Court, it is not far-fetched to
think that policymakers in individual jurisdictions can be con-
vinced to try out new solutions. By curbing our obsession with
the Supreme Court, we might be able to create a better, more
dynamic federalism in the process.
C
ONCLUSION
The Gideon revolution has faltered. Some scholars think Scott
v. Illinois was partially responsible for slowing it down. But
those experienced in the criminal justice system should realize
that Scott is not the real problem. In too many parts of the na-
tion, our system of misdemeanor justice is not working.
As a matter of constitutional law, this Article has argued that
Scott was rightly decided. Indeed, Justice Rehnquist’s invoca-
tion of federalism proved prescient. The States, at least on paper,
have innovated in this area. In thirty-four states, criminal de-
544. See, e.g., Asimow, supra note 509, at 94 (arguing that the American insist-
ence on the adversarial model is largely because of “path dependence—it has
always been done that way”).
545. See B
ARTON & BIBAS, supra note 8, at 75 (“Courts, court processes, and the
regulation of the legal profession effectively benefit the repeat players: judges,
clerks, prosecutors, public defenders, and lawyers.”).
732 Harvard Journal of Law & Public Policy [Vol. 43
fendants have a broader right to counsel than required by Scott.
Some jurisdictions have taken steps to make those rights real.
Others have not, and do not even honor the U.S. Supreme
Court’s existing mandates.
On paper, the States have proven the merits of federalism in
this area. But we should hold our applause. Although some
jurisdictions have gotten pretty close to actualizing America’s
traditional adversarial system for misdemeanors, it is unrealis-
tic to expect the entire country to replicate that. Our misde-
meanor justice system is in desperate need of experimentation.
Inertia is undoubtedly a major obstacle to federalism reaching
its full potential. We need new ideas.
The best reason to celebrate Scott was that it left room for the
States to experiment in more meaningful ways. Had the Supreme
Court adopted Justice Brennan’s proposed authorized impris-
onment test, no state would have room to innovate. The system
would have been ossified, consistent with the vision of robed
central planners. Instead, we have at least fifty shots to build a
better misdemeanor justice system in America.
TAKING ANOTHER LOOK AT THE CALL ON THE
FIELD: ROE, CHIEF JUSTICE ROBERTS, AND STARE
DECISIS
THOMAS J. MOLONY
*
During his confirmation hearing, United States Supreme Court
Chief Justice Roberts described the role of a judge as that of an um-
pire, and he insisted that “[n]obody ever comes to a ball game to see
the umpire.” These days, though, all eyes are on the Chief Justice. He
appears to have become the swing vote on the Court, and his approach
to overruling prior decisions may determine the future of Roe v.
Wade.
The principle of stare decisis requires the Court to adhere to its ear-
lier rulings—even those it considers wrongly decided—absent a “spe-
cial justification.” In Franchise Tax Board v. Hyatt and Knick v.
Township of Scott, both decided 5-4 in the waning days of the
Court’s October 2018 term, Chief Justice Roberts and the other con-
servative Justices on the Court found such a justification and over-
ruled decisions dating back to 1979 and 1985.
Justices Breyer and Kagan suggested that Hyatt and Knick spell a
bad omen for other precedents. But one should not be so quick to pro-
claim that the sky is falling for, on the basis of stare decisis alone, the
Chief Justice sided with the Court’s four progressives in Kisor v.
Wilkie, a 5-4 decision of the same vintage as Hyatt and Knick in
which the Court refused to overrule 1945 and 1997 precedents, and
he joined Justices Alito and Kagan in dissenting from the fractured
Court’s 2020 decision in Ramos v. Louisiana to overturn a ruling
handed down the year before Roe. The Chief Justice’s votes in Kisor
and Ramos suggest a commitment to stare decisis at least to a degree
and that he will give serious and thoughtful consideration to the prin-
ciple’s demands if the Court is asked to overrule Roe.
* Professor of Law, Elon University School of Law. This Article is dedicated to
the memory of John T. “Jack” Ballantine, my father-in-law and a 1957 graduate of
Harvard Law School. Jack was an exceptional lawyer and a consummate gentle-
man. I miss him and always will treasure the relationship we had.
734 Harvard Journal of Law & Public Policy [Vol. 43
This Article explores the Chief Justice’s approach to stare decisis by
examining what he himself has written and where he otherwise has
stood in decisions in which stare decisis has featured prominently.
Without attempting to predict whether the Chief Justice ultimately
would vote in favor of overruling Roe, the Article attempts to identify
significant considerations that could push him in that direction,
thereby offering guidance to litigants on both sides of the issue. And
the Article concludes that Chief Justice Roberts’s devotion to judicial
restraint and the rule of law should lead him to vote in favor of over-
ruling Roe only if a challenged abortion regulation cannot be upheld
on narrower grounds and reaffirming the landmark 1973 decision
will cause more harm to the Constitution than casting the abortion
question out of the courts and back to the States.
I
NTRODUCTION ............................................................ 734
I. T
HE CHIEF JUSTICE’S HISTORICAL APPROACH TO
STARE DECISIS ........................................................ 740
A. Stare Decisis with Greater Force ................. 742
B. Stare Decisis with Lesser Force ................... 751
II. C
ONVINCING THE CHIEF JUSTICE ......................... 777
A. The Force of Planned Parenthood v. Casey .... 778
B. Placing Roe on the Stare Decisis
Continuum ..................................................... 786
C. Applying Stare Decisis Factors to Roe ........ 789
1. Roe’s Age .................................................. 791
2. Quality of Roe’s Reasoning .................... 793
3. Roe’s Workability .................................... 798
4. Developments Since Roe ........................ 801
5. Reliance on Roe ........................................ 804
D. Effect of Overruling Roe on the Court’s
Legitimacy ...................................................... 806
C
ONCLUSION ................................................................ 813
I
NTRODUCTION
Speculate no more. Chief Justice Roberts now has command
of the United States Supreme Court. Nowhere was this on
greater display than the last day of the October 2018 term when
the Court issued opinions addressing partisan gerrymandering
No. 3] The Call on the Field 735
and the propriety of including a question about immigration
status in the census.
1
Chief Justice Roberts was the swing vote
and authored both opinions of the Court, leading the Court’s
conservative wing in rejecting a challenge to North Carolina
and Maryland redistricting plans and siding with the progres-
sive Justices in concluding that the Department of Commerce’s
decision to include a citizenship question on the census did not
proceed from reasoned agency judgment.
2
Now more than ever,
the man who described the job of a judge as that of an “um-
pire”
3
is making the calls that decide the game.
Of course, it is one thing to say whether the last pitch was a
ball or a strike.
4
It is quite another to review a call made almost
fifty years ago and decide whether to overrule another umpire.
Yet that is what abortion opponents want the Court to do with
respect to Roe v. Wade.
5
And how Chief Justice Roberts would
vote if presented with a request to reconsider the 1973 decision
has been subject to much prognostication.
6
1. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019); Dep’t of Commerce v.
New York, 139 S. Ct. 2551 (2019).
2. Rucho, 139 S. Ct. at 2506–07 (“We conclude that partisan gerrymandering
claims present political questions beyond the reach of the federal courts. Federal
judges have no license to reallocate political power between the two major politi-
cal parties . . . .”); Dep’t of Commerce, 139 S. Ct. at 2576 (“We do not hold that the
agency decision here was substantively invalid. . . . Reasoned decisionmaking
under the Administrative Procedure Act calls for an explanation for agency ac-
tion. What was provided here was more of a distraction.”).
3. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of
the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005)
[hereinafter Confirmation Hearing] (statement of Judge John G. Roberts, Jr.).
4. See id. at 56.
5. 410 U.S. 113 (1973); see, e.g., Brief Amici Curiae of 207 Members of Congress in
Support of Respondent and Cross-Petitioner at 2, June Medical Services, LLC v.
Russo, No. 18-1323 (U.S. Jan. 2, 2020).
6. See Joan Biskupic, John Roberts has voted for restrictions on abortion. Will he over-
turn Roe v. Wade?, CNN (May 15, 2019, 6:14 PM), https://www.cnn.com/2019/05/
15/politics/john-roberts-abortion-alabama-roe-v-wade/index.html [https://perma.cc/
QFE9-VY65] (“Chief Justice John Roberts will not vote to strike down Roe v. Wade
and outright ban abortion. At least not yet.”); Ryan Everson, Opinion, Based on his
Obergefell dissent, Chief Justice Roberts will overturn Roe, W
ASH. EXAMINER (June 5,
2019, 1:40 PM), https://www.washingtonexaminer.com/opinion/based-on-his-
obergefell-v-hodges-dissent-chief-justice-john-roberts-will-overturn-roe-v-wade
[https://perma.cc/8FB5-RDHL] (describing Chief Justice’s Roberts’s dissent in
Obergefell v. Hodges, 135 S. Ct. 2584 (2015), and asserting that, “[i]f Roberts ap-
plies this logic to abortion, he would have to overturn Roe”); Pete Williams, The
Supreme Court and abortion: Will Roe v. Wade survive the new onslaught?, NBC
NEWS
736 Harvard Journal of Law & Public Policy [Vol. 43
Both sides of the abortion debate have reason for optimism
and for concern. In Gonzales v. Carhart,
7
decided shortly after
Chief Justice Roberts took his seat on the Court, he and the other
four conservative Justices united to form a 5-4 majority that
upheld the federal partial-birth abortion ban.
8
In addition, in
Whole Woman’s Health v. Hellerstedt,
9
the Chief Justice joined
Justice Alito in dissenting from the Court’s decision to strike
down Texas statutes requiring an abortion provider to have
admitting privileges at a nearby hospital and requiring abor-
tion facilities to meet the standards that apply to ambulatory
surgery centers.
10
On the other hand, in June Medical Services,
LLC v. Gee,
11
Chief Justice Roberts backed a stay against a
Louisiana admitting privileges requirement similar to the one
at issue in Hellerstedt.
12
For several reasons, though, how the Chief Justice voted in
Gonzales and Hellerstedt and with respect to the Gee stay is not
particularly instructive when trying to gauge how he might
vote in a direct challenge to Roe. First, the Court in Gonzales did
not consider whether to overrule Roe.
13
Second, Justice Alito’s
dissent in Hellerstedt focused largely on procedural missteps
Justice Alito believed the majority had made.
14
Third, the Chief
Justice did not join Justice Thomas in Gonzales when he asserted
his “view that the Court’s abortion jurisprudence . . . has no
basis in the Constitution”
15
or in Hellerstedt when Justice Thomas
(May 16, 2019, 10:01 AM), https://www.nbcnews.com/politics/supreme-court/
supreme-court-abortion-will-right-survive-new-onslaught-n1006386 [https://perma.cc/
N8J6-7DXX] (“[I]t takes five votes to [overturn Roe v. Wade], and there’s no guar-
antee Chief Justice John Roberts would provide it, given his interest in the court’s
long-term legacy.”).
7. 550 U.S. 124 (2007).
8. Id. at 133 (“We conclude the [Partial-Birth Abortion Ban Act of 2003] should
be sustained . . . .”).
9. 136 S. Ct. 2292 (2016).
10. See id. at 2330–53 (Alito, J., dissenting).
11. 139 S. Ct. 663 (2019) (mem.).
12. Id. at 663.
13. See Gonzales, 550 U.S. at 156–67 (upholding the federal partial-birth abortion
ban under the undue burden standard adopted in Planned Parenthood of Se. Pa.
v. Casey, 505 U.S. 833 (1992)).
14. See Hellerstedt, 136 S. Ct. at 2330 (Alito, J., dissenting) (“[D]etermined to
strike down two provisions of a new Texas abortion statute in all of their applica-
tions, the Court simply disregards basic rules that apply in all other cases.”).
15. 550 U.S. at 169 (Thomas, J., concurring).
No. 3] The Call on the Field 737
declared that he “remain[ed] fundamentally opposed to the
Court’s abortion jurisprudence.”
16
Finally, the Chief Justice’s
vote in Gee was for temporary relief and therefore signals noth-
ing about how he might vote on the merits.
17
Divining how Chief Justice Roberts might vote in a case chal-
lenging Roe becomes all the more difficult when one considers
where he has stood in recent decisions featuring stare decisis, a
Latin phrase meaning “to stand by things decided”
18
and a
principle that directs courts to follow precedent absent a “spe-
cial justification” for doing otherwise.
19
During his confirma-
tion hearing, the Chief Justice emphasized that “overruling of a
prior precedent . . . is inconsistent with principles of stability
and yet . . . the principles of stare decisis recognize that there are
situations when that’s a price that has to be paid.”
20
In two de-
cisions handed down as the October 2018 term drew to a close,
the Chief Justice was willing to pay that price;
21
in two others at
the end of that term and a third during the Court’s most recent
term, he declined.
22
16. 136 S. Ct. at 2324 (Thomas, J., dissenting).
17. The Court has issued a writ of certiorari and heard oral arguments in June
Medical Services, LLC v. Gee, but has not issued an opinion on the merits. See June
Medical Services, LLC v. Gee, 140 S. Ct. 35, 35–36 (2019) (mem.) (granting certiorari);
June Medical Services, LLC v. Russo, No. 18-1323 (U.S. argued Mar. 4, 2020).
18. Stare decisis, B
LACK’S LAW DICTIONARY (11th ed. 2019).
19. Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019) (quoting Halliburton Co. v. Erica
P. John Fund, Inc., 573 U.S. 258, 266 (2014)) (internal quotation marks omitted).
20. See Confirmation Hearing, supra note 3, at 144 (statement of Judge John G.
Roberts, Jr.).
21. See Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019) (overruling
Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985));
Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1490 (2019) (overruling Nevada v.
Hall, 440 U.S. 410 (1979)).
22. See Ramos v. Louisiana, 140 S. Ct. 1390, 1425 (2020) (Alito, J., dissenting)
(dissenting from the Court’s decision to overrule Apodaca v. Oregon, 406 U.S. 404
(1972)); Kisor, 139 S. Ct. at 2408 (refusing to overrule Auer v. Robbins, 519 U.S. 452
(1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)); Gamble v.
United States, 139 S. Ct. 1960, 1964 (2019) (affirming precedent supporting the
“dual sovereignty” doctrine). During the current term, the Chief Justice also was
part of the majority in Allen v. Cooper, 140 S. Ct. 994 (2020), a case in which the
Court concluded that stare decisis stood in the way of the plaintiffs’ claim against
North Carolina for copyright infringement. See id. at 1003 (indicating that decid-
ing in the plaintiffs’ favor would require the Court to overrule Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999)). The
Court in Allen declined to revisit the relevant precedent because the plaintiff as-
738 Harvard Journal of Law & Public Policy [Vol. 43
Chief Justice Roberts was in the majority in all four rulings at
the close of the October 2018 term.
23
Three of the cases were
decided by a 5-4 margin.
24
In Franchise Tax Board v. Hyatt,
25
the
Chief Justice joined his conservative brethren in overturning
the Court’s 1979 decision in Nevada v. Hall.
26
About a month
later, the Chief Justice wrote the opinion for the same conserva-
tive majority in Knick v. Township of Scott,
27
a case in which the
Court discarded Williamson County Regional Planning Commission
v. Hamilton Bank,
28
which dated back to 1985.
29
Justice Breyer
dissented in Hyatt and “wonder[ed] which cases the Court
[would] overrule next.”
30
Justice Kagan latched on to this in her
Knick dissent, responding: “[T]hat didn’t take long. Now one
may wonder yet again.”
31
Just days after the Court released its opinion in Knick, how-
ever, Chief Justice Roberts allied with the Court’s progressives
in Kisor v. Wilkie
32
to uphold decisions from 1997 and 1945—
Auer v. Robbins
33
and Bowles v. Seminole Rock & Sand Co.
34
Less
than a year later, the Chief Justice once again exhibited a reti-
cence to overrule precedent, pairing up with Justices Alito and
Kagan to decry the 6-3 decision in Ramos v. Louisiana
35
that dis-
posed of Apodaca v. Oregon,
36
a 1972 Sixth Amendment ruling.
37
serted nothing more than that the earlier case was decided incorrectly. See id. (ex-
plaining that “error alone . . . cannot overcome stare decisis”).
23. Kisor, 139 S. Ct. at 2408; Knick, 139 S. Ct. at 2166–67; Gamble, 139 S Ct. at 1963;
Hyatt, 139 S. Ct. at 1490.
24. Kisor, 139 S. Ct. at 2408; Knick, 139 S. Ct. at 2166–67; Hyatt, 139 S. Ct. at 1490.
25. 139 S. Ct. 1485.
26. 440 U.S. 410; see Hyatt, 139 S. Ct. at 1490.
27. 139 S. Ct. 2162.
28. 473 U.S. 172 (1985).
29. Knick, 139 S. Ct. at 2179.
30. Hyatt, 139 S. Ct. at 1506 (Breyer, J., dissenting).
31. Knick, 139 S. Ct. at 2190 (Kagan, J., dissenting).
32. 139 S. Ct. 2400 (2019).
33. 519 U.S. 452 (1997).
34. 325 U.S. 410 (1945); see Kisor, 139 S. Ct. at 2408 (affirming Auer and Seminole
Rock).
35. 140 S. Ct. 1390 (2020).
36. 406 U.S. 404 (1972).
37. See Ramos, 140 S. Ct. at 1439–40 (Alito, J., dissenting) (asserting that the
Court should have upheld Apodaca based on stare decisis).
No. 3] The Call on the Field 739
The Chief Justice’s votes in Hyatt, Knick, Kisor, and Ramos ev-
idence a complex and nuanced view about the place of stare
decisis in our constitutional system. With these cases in the
backdrop, eyes naturally turn to the Chief Justice when it
comes to abortion. Indeed, his beliefs about stare decisis could
prove critical to the continuing vitality of Roe and the right to
choose that the Court recognized in 1973.
This Article examines Chief Justice Roberts’s approach to
stare decisis, attempting to identify matters that could prove
important to him in evaluating Roe, but without offering a pre-
diction about how he would vote in a case challenging the de-
cision. Part I explores the Court’s jurisprudence with respect to
stare decisis since the Chief Justice took his seat on the Court,
surveying how the Court has applied the principle in statutory,
procedural, and constitutional contexts and describing important
concurring and dissenting opinions that the Chief Justice either
has written himself or has joined. Part II then attempts to distill
from the Chief Justice’s historical statements and positions on
stare decisis particular matters that may influence his thinking
about the principle in relation to Roe. In so doing, the Article
highlights critical points for parties to address as they try to
persuade the Chief Justice to vote one way or the other. Finally,
the Article concludes that, to win Chief Justice Roberts’s vote to
overrule Roe, challengers will need to prove that Roe was “not
just wrong,” but that “[i]ts reasoning was exceptionally ill
founded”
38
and that continuing to recognize a constitutional
right to choose abortion would “do[] more damage to [the rule
of law] than to advance it.”
39
The Chief Justice admitted in his confirmation hearing that
“it is a jolt to the legal system when you overrule a prece-
dent.”
40
History tells us, however, that the Chief Justice be-
lieves fidelity to the Constitution is paramount and sometimes
demands that the legal system absorb the shock.
41
38. Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019).
39. Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring).
40. Confirmation Hearing, supra note 3, at 144 (statement of Judge John G. Roberts, Jr.).
41. See, e.g., Knick, 139 S. Ct. at 2166–67.
740 Harvard Journal of Law & Public Policy [Vol. 43
I. THE CHIEF JUSTICE’S HISTORICAL APPROACH TO STARE
DECISIS
Stare decisis is not a monolithic principle, as Chief Justice
Roberts explained in his confirmation hearing.
42
It takes on
“special force” with respect to a precedent that interprets a
statute because, through subsequent legislation, Congress can
remedy an erroneous ruling.
43
The principle is weaker, on the
other hand, with respect to constitutional matters given that,
absent Court action, correction usually requires the people to
go through the onerous process of amending the Constitution.
44
But even these general parameters only go so far, for a weaker
form of stare decisis applies when the Court interprets the
Sherman Antitrust Act,
45
and according to Chief Justice Roberts,
a stronger version applies in constitutional matters involving
the dormant Commerce Clause.
46
In the Court’s 2019 decision in Gamble v. United States,
47
Justice
Thomas announced his view that, in applying stare decisis, the
Court should consider only whether the prior decision is “de-
monstrably erroneous.”
48
If it is, according to Justice Thomas,
the Court should overrule the decision without considering
42. See Confirmation Hearing, supra note 3, at 164 (statement of Judge John G.
Roberts, Jr.) (indicating that stare decisis “is strongest when you’re dealing with a
statutory decision” but enjoys less force in constitutional matters).
43. Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 274 (2014) (“The
principle of stare decisis has ‘special force’ ‘in respect to statutory interpretation’
because ‘Congress remains free to alter what we have done.’” (quoting John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008))).
44. Knick, 139 S. Ct. at 2177–78 (“The doctrine ‘is at its weakest when we inter-
pret the Constitution’ . . . because only this Court or a constitutional amendment
can alter our holdings.” (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997))); see
also U.S.
CONST. art. V (requiring ratification by three-fourths of the states for con-
stitutional amendments).
45. 15 U.S.C. § 1 (2018); Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2412
(2015) (“This Court has viewed stare decisis as having less-than-usual force in cases
involving the Sherman Act.” (citing State Oil Co. v. Khan, 522 U.S. 3, 20–21
(1997))); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007)
(“Stare decisis is not as significant in this case, . . . because the issue before us is the
scope of the Sherman Act.” (citing Khan, 522 U.S. at 20)).
46. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2102 (2018) (Roberts, C.J.,
dissenting) (“We have applied this heightened form of stare decisis in the dormant
Commerce Clause context.”).
47. 139 S. Ct. 1960 (2019).
48. Id. at 1984–85 (Thomas, J., concurring).
No. 3] The Call on the Field 741
other factors that might weigh in favor of retaining the prece-
dent as a matter of policy.
49
The Chief Justice Roberts does not
agree. Not only did he not support Justice Thomas’s concur-
rence in Gamble, he spoke of the traditional factors underlying
stare decisis in his confirmation hearing,
50
dissented from the
Court’s 2018 decision to overrule precedent in South Dakota v.
Wayfair
51
even though he believed the previous cases were
wrongly decided,
52
and voted in Kisor and Ramos to uphold Auer,
Seminole Rock, and Apodaca, not based on the soundness of
those rulings, but on the grounds of stare decisis alone.
53
If this
were not enough, the Chief Justice made his view abundantly
clear in Allen v. Cooper
54
by joining Justice Kagan’s opinion for
the Court, which explained that, “with th[e] charge of error
alone, [one] cannot overcome stare decisis.”
55
As the Chief Justice stressed in Citizens United v. FEC:
56
“Stare
decisis is . . . a ‘principle of policy.’ When considering whether
to reexamine a prior erroneous holding, we must balance the
importance of having constitutional questions decided against
49. See id. at 1981–82 (“The Court currently views stare decisis as a ‘principle of
policy’ that balances several factors . . . . This approach . . . might have made sense
in a common-law legal system . . . . But our federal system is different.” (quoting
Citizens United v. FEC, 558 U.S. 310, 363 (2010)) (internal quotation marks omitted)).
Justice Thomas reiterated this view in Ramos and in another 2020 concurrence. See
Ramos v. Louisiana, 140 S. Ct. 1390, 1421–22 (2020) (Thomas, J., concurring in the
judgment); Allen v. Cooper, 140 S. Ct. 994, 1007–08 (2020) (Thomas, J., concurring
in part and concurring in the judgment).
50. Confirmation Hearing, supra note 3, at 143–44 (statement of Judge John G.
Roberts, Jr.) (“It is not enough that you may think the prior decision was wrongly
decided. . . . [Y]ou . . . look at these other factors, like settled expectations, like the
legitimacy of the Court, like whether a particular precedent is workable or not,
whether a precedent has been eroded by subsequent developments.”).
51. 138 S. Ct. 2080.
52. Id. at 2101 (Roberts, C.J., dissenting) (indicating that, although he “agree[d]
that [National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967)] was
wrongly decided,” he would have “decline[d] the invitation” to overrule it).
53. See Ramos, 140 S. Ct. at 1434 (Alito, J., dissenting) (with Chief Justice Roberts
joining) (“I cannot say that I would have agreed either with Justice White’s analy-
sis or his bottom line in Apodaca if I had sat on the Court at that time . . . .”); Kisor,
139 S. Ct. at 2424 (Roberts, C.J., concurring) (joining the majority opinion’s consid-
eration of stare decisis, but not its evaluation of whether Auer and Seminole Rock
were correctly decided).
54. 140 S. Ct. 994.
55. Id. at 1003.
56. 558 U.S. 310 (2010).
742 Harvard Journal of Law & Public Policy [Vol. 43
the importance of having them decided right.”
57
To earn the
Chief Justice’s vote to overrule Roe, it will take more than con-
vincing him that the Court got it wrong in 1973.
A. Stare Decisis with Greater Force
Except with respect to a ruling that interpreted the Sherman
Antitrust Act,
58
Chief Justice Roberts consistently has voted in
favor of upholding precedent based on stare decisis when the
earlier rulings have involved either statutory interpretation or a
field in which Congress exercises primary authority.
59
In those
cases, the Chief Justice has stressed, the Court should exercise
restraint and defer to Congress because “legislators may more
directly consider the competing interests at stake” and “ha[ve]
the capacity to investigate and analyze facts beyond anything
the Judiciary could match.”
60
In 2008, Chief Justice Roberts joined the majority in John R.
Sand & Gravel Co. v. United States,
61
a decision in which the
Court gave brief attention to stare decisis when declining an
invitation to overrule the Court’s decisions in three cases: Soriano
v. United States,
62
Finn v. United States,
63
and Kendall v. United
57. Id. at 378 (Roberts, C.J., concurring) (citation omitted) (quoting Helvering v.
Hallock, 309 U.S. 106, 119 (1940)).
58. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007).
59. One might argue that the Chief Justice did not take this approach when he
joined Justice Alito’s dissent in Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401
(2015), with respect to a Patent Act decision or when he wrote the majority opin-
ion in Knick which involved a practical problem that Congress could solve by
amending a statute. See infra notes 231–254, 314–326 and accompanying text (dis-
cussing Kimble and Knick). But Justice Alito asserted in Kimble that the precedent
the Court refused to overrule “d[id] not actually interpret a statute,” Kimble, 135 S.
Ct. at 2418 (Alito, J., dissenting), and in Knick, the Chief Justice stressed that Congress
could not offer a complete solution to the prior opinion’s erroneous interpretation
of the Constitution. Knick, 139 S. Ct. at 2179 (“But takings plaintiffs, unlike plain-
tiffs bringing any other constitutional claim, would still have been forced to pur-
sue relief under state law before they could bring suit in federal court. Congress
could not have lifted that unjustified exhaustion requirement . . . .”).
60. South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2104 (2018) (Roberts, C.J., dis-
senting) (quoting Gen. Motors Corp. v. Tracy, 519 U.S. 278, 309 (1997)) (internal
quotation marks omitted); see Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S.
258, 277 (2014) (indicating that concerns regarding abuses associated with securi-
ties class action law suits “are more appropriately addressed to Congress”).
61. 552 U.S. 130 (2008).
62. 352 U.S. 270 (1957).
63. 123 U.S. 227 (1887).
No. 3] The Call on the Field 743
States.
64
The Court had concluded in all three that the statute of
limitations for federal claims is jurisdictional in nature,
65
and
consistent with those decisions, the John R. Sand Court ruled
that the Court of Federal Claims must consider the running of
any applicable statute of limitations even if the government
does not assert the statute as a defense.
66
Noting the “special force” of stare decisis with respect to
statutory interpretation, the Court rejected arguments that the
prior decisions had proved unworkable and that reliance inter-
ests were not an impediment to overruling them.
67
With regard
to workability, the Court emphasized that its different treat-
ment of “similarly worded[] statutes” more recently did not
mean that the previous decisions had become unworkable, but
if anything, reflected varying judicial assumptions.
68
Moreover,
for reasons not explained, the Court indicated that, even if no
governmental reliance on the earlier decisions could be estab-
lished, having a settled matter now reversed could prove
harmful.
69
Just months after John R. Sand, the Court applied principles
of stare decisis in a nontraditional way—to determine the scope
of a civil rights statute. In CBOCS West, Inc. v. Humphries,
70
the
Chief Justice again joined the opinion of the Court, which this
time concluded that a person may make an unlawful retaliation
claim under 42 U.S.C. § 1981.
71
In arriving at its decision, the
Court reasoned that § 1981 historically has been treated in a
manner similar to 42 U.S.C. § 1982, that in Sullivan v. Little
Hunting Park, Inc.
72
in 1969 and Jackson v. Birmingham Board of
Education
73
in 2005, the Court considered § 1982 to include a
claim for retaliation, and that after the Court had interpreted
§ 1981 to reach only conduct related to the formation of a con-
64. 107 U.S. 123 (1883); see John R. Sand, 552 U.S. at 138–39.
65. See John R. Sand, 552 U.S. at 134–36.
66. Id. at 132.
67. Id. at 139.
68. Id. at 138–39.
69. See id. at 139.
70. 553 U.S. 442 (2008).
71. Id. at 446 (“The question before us is whether § 1981 encompasses retaliation
claims. We conclude that it does.”).
72. 396 U.S. 229 (1969).
73. 544 U.S. 167 (2005).
744 Harvard Journal of Law & Public Policy [Vol. 43
tract, Congress amended § 1981 in a way that permitted the
Court to decide that it covered retaliation.
74
Using stare decisis to justify its decision, the Court explained
that Sullivan (as the Court in Jackson understood and applied
it), when combined with the Court’s extensive historical prac-
tice of treating §§ 1981 and 1982 similarly, indicates that “the
view that § 1981 encompasses retaliation claims is . . . well em-
bedded in the law.”
75
As a result, the Court suggested, ruling to
the contrary would undermine “many Court precedents” and
effectively would overrule Sullivan.
76
According to the Court,
the age of the Sullivan decision weighed against going that
far.
77
Moreover, in disposing of CBOCS’s argument that since
Sullivan the Court has taken a more textualist approach to stat-
utory interpretation, the CBOCS Court declared that changes in
interpretive methods would not justify reconsideration of
“well-established prior law.”
78
Returning to the traditional context for analyzing what stare
decisis requires, the Court in Michigan v. Bay Mills Indian
Community
79
decided against overruling its 1998 decision in
Kiowa Tribe v. Manufacturing Technologies, Inc.
80
Contending that
abrogating sovereign immunity was a matter for Congress and
not the courts, the Kiowa Court had concluded that tribal sover-
eign immunity extends to suits with respect to a tribe’s com-
mercial activities even when those activities are not conducted
on tribal lands.
81
The Court in Bay Mills, with the Chief Justice
in the majority, indicated that, “[h]aving held in Kiowa that this
issue is up to Congress, [it could not] reverse [itself] because
some may think its conclusion wrong”
82
and that it would
“scale the heights of presumption” for the Court to overturn
74. See CBOCS, 553 U.S. at 451.
75. Id.
76. Id. at 451–52.
77. See id. at 453 (“[W]e believe it is too late in the day in effect to overturn the
holding in that case (nor does CBOCS ask us to do so) on the basis of a linguistic
argument that was apparent, and which the Court did not embrace at that time.”).
78. Id. at 457.
79. 572 U.S. 782 (2014).
80. 523 U.S. 751 (1998); see Bay Mills, 572 U.S. at 791.
81. See Bay Mills, 572 U.S. at 790.
82. Id. at 803.
No. 3] The Call on the Field 745
Kiowa after Congress specifically considered Kiowa when debat-
ing legislation that would modify tribal immunity.
83
In declining Michigan’s request to overrule Kiowa, the Bay
Mills Court indicated that several stare decisis factors raised a
bar that Michigan could not overcome. Looking both forward
and backward, the Court noted that Kiowa itself had “reaf-
firmed a long line of precedents”
84
and that the Court later fol-
lowed Kiowa in a case involving commercial activity conducted
outside tribal lands.
85
Moreover, the Court highlighted that
“concerns of stare decisis . . . are ‘at their acme’” in property and
contract cases, and parties have looked to Kiowa in designing
business transactions.
86
In addition, the Court noted that Michigan
had not offered any new arguments and that the state’s argu-
ment regarding changes in tribal commercial activity had been
disposed of previously.
87
Finally, the Bay Mills Court empha-
sized that Kiowa recognized that “Congress . . . has the greater
capacity ‘to weigh and accommodate the competing policy
concerns and reliance interests’ involved” and its decisions
therefore should command respect.
88
One sees a similar emphasis on deferring to Congress in
opinions Chief Justice Roberts authored after Bay Mills. Writing
the opinion of the Court in 2014 in Halliburton Co. v. Erica P.
John Fund, Inc.
89
and a dissent in the Court’s 2018 South Dakota
v. Wayfair, Inc.
decision, Chief Justice Roberts rejected the idea
that the Court should abandon precedents that arguably had
become outmoded because of changes in the economy or in our
understanding of the economy.
90
According to the Chief Justice,
83. Id.
84. Id. at 798.
85. See id. (indicating that the Court began with Kiowa when it reached its deci-
sion in C & L Enters., Inc. v. Citizen Band Potawatomi Tribe, 532 U.S. 411 (2001)).
86. Id. at 799 (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)).
87. Id.
88. Id. at 800–01 (quoting Kiowa Tribe v. Mfg. Techs., Inc., 523 U.S. 751, 759
(1998)).
89. 573 U.S. 258 (2014).
90. See id. at 272 (“Halliburton has not identified the kind of fundamental shift
in economic theory that could justify overruling a precedent on the ground that it
misunderstood, or has since been overtaken by, economic realities.”); South Dakota
v. Wayfair, Inc., 138 S. Ct. 2080, 2104 (2018) (Roberts, C.J., dissenting) (“The Court
is of course correct that the Nation’s economy has changed dramatically since the
746 Harvard Journal of Law & Public Policy [Vol. 43
it is best to leave such considerations to Congress and, if the
Court had erred, allow Congress to provide the remedy.
91
As
he emphasized in Wayfair:
A good reason to leave these matters to Congress is that leg-
islators may more directly consider the competing interests
at stake. Unlike this Court, Congress has the flexibility to
address these questions in a wide variety of ways. . . . Congress
“has the capacity to investigate and analyze facts beyond
anything the Judiciary could match.”
92
In Halliburton, though, stare decisis may not have been the
most compelling motivation for the Chief Justice’s vote to re-
tain a controversial aspect of the Court’s 1988 decision in Basic,
Inc. v. Levinson.
93
As Justice Kagan explained in Kimble v. Marvel
Entertainment, LLC,
94
“stare decisis has consequence only to the
extent it sustains incorrect decisions; correct judgments have no
need for that principle to prop them up.”
95
And it seems that
Chief Justice Roberts was not convinced that the Basic Court
had gone off track.
96
The Court long has recognized that Rule 10b-5 under the
Securities Exchange Act of 1934
97
includes a private cause of
action for securities fraud,
98
and to recover, a plaintiff must es-
tablish reliance on the defendant’s false or misleading state-
ment.
99
In Basic, the Court made this task easier for Rule 10b-5
time that Bellas Hess and Quill roamed the earth. I fear the Court today is com-
pounding its past error by trying to fix it in a totally different era.”).
91. See Wayfair, 138 S. Ct. at 2104–05 (Roberts, C.J., dissenting) (“I would let
Congress decide whether to depart from the physical-presence rule that has gov-
erned this area for half a century.”); Halliburton, 573 U.S. at 277 (“[C]oncerns
[about abuses in class actions] are more appropriately addressed to Congress . . . .”).
92. Wayfair, 138 S. Ct. at 2104 (Roberts, C.J., dissenting) (quoting Gen. Motors
Corp. v. Tracy, 519 U.S. 278, 309 (1997)).
93. 485 US 224 (1988).
94. 135 S. Ct. 2401 (2015).
95. Id. at 2409.
96. See Halliburton, 573 U.S. at 272 (“The academic debates . . . have not refuted
the modest premise underlying [Basic’s] presumption of reliance.”).
97. 15 U.S.C. §§ 78a–78qq (2018).
98. Halliburton, 573 U.S. at 267 (“[W]e have long recognized an implied private
cause of action to enforce [section 10(b) of the Securities Exchange Act of 1934]
and its implementing regulation.” (citing Blue Chip Stamps v. Manor Drug Stores,
421 U.S. 723, 730 (1975))).
99. Id.
No. 3] The Call on the Field 747
plaintiffs by giving them the benefit of a rebuttable presump-
tion of reliance based on the “fraud-on-the-market” theory,
which hypothesizes that the market price of securities traded
on an efficient market will incorporate all information publicly
available, including false or misleading statements.
100
Urging
the Court to overrule Basic’s presumption, the defendants in
Halliburton argued that the presumption was inconsistent with
congressional intent and based on since-discredited economic
theory.
101
Refusing to overrule Basic’s presumption of reliance, the
Halliburton Court observed that the defendants had not offered
any new arguments regarding congressional intent that would
give the Court cause to revisit the question.
102
In addition, the
Court determined that subsequent developments in economic
theory did not undermine the presumption’s validity, but in-
stead informed assessments of when the presumption applies
or has been rebutted.
103
The Court in Halliburton also observed
that Basic itself acknowledged the controversy surrounding the
underlying economic theory and that the ensuing debate has
not undermined Basic’s “modest premise.”
104
Moreover, the
Halliburton Court asserted, the defendants had not “identified
the kind of fundamental shift in economic theory that could
justify overruling a precedent on the ground that it misunder-
stood, or has since been overtaken by, economic realities.”
105
The Court in Halliburton also concluded that the principle of
stare decisis stood in the way of overruling Basic’s presumption.
Acknowledging that Basic’s presumption related to a judicially-
created implied cause of action,
106
the Court insisted that Basic
enjoyed the weighty form of stare decisis that applies to statu-
tory interpretation because Congress can modify the Rule 10b-5
private cause of action if it disagrees with how the Court has
100. Id. at 268.
101. Id. at 269.
102. Id. at 270.
103. Id. at 272 (“[I]n making the presumption rebuttable, Basic recognized that
market efficiency is a matter of degree and accordingly made it a matter of
proof.”).
104. Id.
105. Id.
106. Id. at 274.
748 Harvard Journal of Law & Public Policy [Vol. 43
applied it. In fact, the Halliburton Court asserted, the abuses in
securities fraud cases that the defendants cited were better ad-
dressed by Congress, which had enacted remedial statutes
twice since Basic.
107
Finally, the Court denied that Basic’s pre-
sumption conflicted with more recent decisions.
108
Unlike in Halliburton, the Wayfair Court was undeterred by
stare decisis when it upheld a South Dakota law that requires
an out-of-state merchant to collect sales taxes with respect to
sales made in the South Dakota even when the merchant has
no physical presence there.
109
In the course of reaching its deci-
sion, the Court overruled National Bellas Hess, Inc. v. Department
of Revenue
110
and Quill Corp. v. North Dakota,
111
in which the
Court had determined that the Constitution required a “physi-
cal presence” before a state could impose a collection obliga-
tion on out-of-state residents.
112
In overruling Bellas Hess and Quill, the Wayfair majority em-
phasized that changes in the economic landscape, with the
surge of internet sales, undermined the justifications for the
physical presence rule.
113
Moreover, the Court insisted that Bellas
Hess and Quill have resulted in a “judicially created tax shelter”
and arbitrary discrimination against “economically identical
actors.”
114
The physical presence rule, the Wayfair Court con-
tended, was “an extraordinary imposition by the Judiciary on
States’ authority to collect taxes and perform critical public
functions,”
115
and allowing the rule to persist might undermine
the Court’s legitimacy concerning the cases involving the regu-
lation of interstate commerce.
116
107. Id. at 274, 276–77.
108. Id. at 274–76.
109. See South Dakota v. Wayfair, 138 S. Ct. 2080, 2091–92, 2099 (2018).
110. 386 U.S. 753 (1967).
111. 504 U.S. 298 (1992).
112. Wayfair, 138 S. Ct. at 2099.
113. Id. at 2093 (“[T]he administrative costs of compliance [with a sales tax col-
lection requirement], especially in the modern economy with its Internet technology,
are largely unrelated to whether a company happens to have a physical presence
in a State.”).
114. Id. at 2094.
115. Id. at 2095.
116. See id. at 2096 (“It is essential to public confidence in the tax system that the
Court avoid creating inequitable exceptions. This is also essential to the confi-
No. 3] The Call on the Field 749
According to the Wayfair majority, stare decisis did not stand
in the way of overruling Bellas Hess and Quill.
117
Although the
Wayfair Court acknowledged that Congress could abrogate the
“physical presence” rule under its power to regulate interstate
commerce, the Court stressed that Congress could not correct
an erroneous constitutional interpretation.
118
Quill, the Court
held, was wrong when decided and changes in the economy
only have made its effects more serious.
119
Furthermore, the
Court opined that the physical presence rule was unworkable
because attempting to define what constitutes physical pres-
ence has become increasingly difficult in the modern age, creat-
ing the risk that “technical and arbitrary disputes” would flood
the court system.
120
In addition, the Court stressed that reliance
interests can prop up errant precedent only when the interests
are “legitimate,” and they were not in the case of the physical
presence rule because the rule aided consumers in avoiding tax
obligations.
121
Moreover, the Court indicated that “other as-
pects of the Court’s Commerce Clause doctrine” could fill the
gaps in the protection of interstate commerce that abolition of
the physical presence rule might leave open.
122
In dissent, Chief Justice Roberts agreed that Bellas Hess was
incorrect when decided, but he argued that the Court should
have upheld Bellas Hess and Quill based on stare decisis.
123
Sim-
ilar to his view in Halliburton, the Chief Justice pointed to the
particular strength of the doctrine when Congress can correct
the Court’s missteps,
124
and he contended that the Court should
avoid making new mistakes in trying to address changes in
dence placed in this Court’s Commerce Clause decisions. Yet the physical pres-
ence rule undermines that necessary confidence . . . .”).
117. See id.
118. Id.
119. See id. at 2097 (“Though Quill was wrong on its own terms when it was
decided in 1992, since then the Internet revolution has made its earlier error all the
more egregious and harmful.”).
120. Id. at 2098.
121. Id.
122. Id.
123. Id. at 2101 (Roberts, C.J., dissenting).
124. Id. (explaining that the force of stare decisis is “even higher [than normal]
in fields in which Congress ‘exercises primary authority’ and can, if it wishes,
override this Court’s decisions with contrary legislation” (quoting Michigan v.
Bay Mills Indian Cmty., 572 U.S. 782, 799 (2014))).
750 Harvard Journal of Law & Public Policy [Vol. 43
economic reality: “I fear the Court today is compounding its
past error by trying to fix it in a totally different era. . . . I would
let Congress decide whether to depart from the physical-
presence rule that has governed this area for half a century.”
125
He also asserted that there is even more reason to uphold the
physical presence rule under stare decisis because the Court had
reaffirmed the rule in Quill, “toss[ing] [the ball] into Congress’s
court” a second time.
126
In addition, the Chief Justice stressed
that Congress has been considering how to address collection
of taxes in the changing economy and the Court’s decision to
abandon the rule could impede congressional action.
127
The Chief Justice’s espousal of deference to the political
branches when possible was on display most recently in Kisor
v. Wilkie, a 2019 case in which the only question at issue was
whether to retain or overrule Auer v. Robbins and Bowles v.
Seminole Rock.
128
In Auer and Seminole Rock, the Court deter-
mined that courts should defer to reasonable agency interpreta-
tions of ambiguous regulations,
129
and with significant attention
to the principles of stare decisis, the Court upheld both.
130
Chief Justice Roberts was the swing vote in Kisor’s five-
Justice majority, but unlike the other four Justices, he did not
vote to uphold Auer and Seminole Rock because he believed they
were correctly decided.
131
Instead, his vote turned solely on the
Court’s application of stare decisis.
132
In applying the principle
to Auer and Seminole Rock, the Court emphasized that Congress
has the ability to alter decisions deferring to agency interpreta-
tions—thus enhancing the force of stare decisis—and that
Congress had declined to do so even as Supreme Court Justices
125. Id. at 2104–05.
126. Id. at 2102 (second alteration in original) (quoting Kimble v. Marvel Entm’t,
Inc., 135 S. Ct. 2401, 2409 (2015)) (internal quotation marks omitted).
127. See id. at 2102–03.
128. Kisor v. Wilkie, 139 S. Ct. 2400, 2408 (2019).
129. See id. (citing Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock
& Sand Co., 325 U.S. 410 (1945)).
130. See id.
131. See id. at 2424 (Roberts, C.J., concurring in part).
132. See id. (“For the reasons the Court discusses in [the part of the Court’s opinion
addressing stare decisis], I agree that overruling those precedents is not warranted.”).
No. 3] The Call on the Field 751
have questioned the propriety of deference.
133
Moreover, the
Court stressed that overruling Auer and Seminole Rock would
introduce unparalleled uncertainty with respect to previous
Court decisions:
Deference to reasonable agency interpretations of ambigu-
ous rules pervades the whole corpus of administrative
law. . . . [B]ecause that is so, abandoning Auer deference
would cast doubt on many settled constructions of
rules . . . [and] would allow relitigation of any decision
based on Auer . . . . It is the rare overruling that introduces so
much instability into so many areas of law, all in one blow.
134
Finally, the Kisor Court pointed out the fact that a decision was
incorrect or poorly reasoned is not the measure for stare decisis
and that the petitioner had not argued that deference was un-
workable, nor had he identified changes in legal doctrine that
undermine Auer.
135
B. Stare Decisis with Lesser Force
Although the Chief Justice consistently has voted against
overruling precedents in which stare decisis enjoys particular
force, he has not been so confined in contexts in which he has
considered the principle’s effect more modest. The Chief Justice,
however, favored restraint in the first case after his elevation to
the Court that specifically implicated the effect of stare decisis.
In Randall v. Sorrell
136
a fractured Court reversed the decision
of the Court of Appeals for the Second Circuit to uphold a
Vermont law limiting campaign contributions and expendi-
tures.
137
Justice Breyer announced the judgment of the Court in
Randall, but only Chief Justice Roberts joined in Justice Breyer’s
treatment of stare decisis.
138
According to Justice Breyer, the
defendants in Randall “in effect” had asked the Court to over-
133. Id. at 2422–23 (majority opinion) (explaining conclusion power and point-
ing out that Congress has declined to exercise it).
134. Id. at 2422.
135. Id. at 2423.
136. 548 U.S. 230 (2006).
137. Id. at 236, 263 (plurality opinion).
138. Id. at 235.
752 Harvard Journal of Law & Public Policy [Vol. 43
rule Buckley v. Valeo,
139
a 1976 decision in which the Court
struck down on First Amendment grounds federal campaign
expenditure limits, but concluded that the contribution limits
in the federal law did not contravene the Constitution’s free
speech guarantee.
140
Justice Breyer insisted that principles under-
lying stare decisis weighed against overruling Buckley.
141
In par-
ticular, he stressed that adhering to precedent is particularly
important when it “has become settled through iteration and
reiteration over a long period of time”
142
and that the Court re-
peatedly had applied Buckley in subsequent cases.
143
Moreover,
he pointed out that circumstances have not changed that weaken
the legal principles described in or the factual basis underlying
Buckley and that Congress and state legislatures have relied on
the decision in crafting campaign finance laws.
144
Just a year after Randall, though, Chief Justice Roberts was
willing to dispense with an antitrust precedent. In Leegin Creative
Leather Products, Inc. v. PSKS, Inc.,
145
the Chief Justice was part
of a five-Justice conservative majority that overruled the
Court’s nearly 100-year-old decision in Dr. Miles Medical Co. v.
John D. Park & Sons Co.
146
The Leegin Court explained that the
Court has understood Dr. Miles as adopting a per se rule that
an agreement between a manufacturer and a distributor setting
a minimum price for resale of a good—that is, a vertical price
restraint—is illegal under section 1 of the Sherman Antitrust
Act.
147
Emphasizing changes in the American economy and ad-
vances in understanding the effect of such agreements, the
139. 424 U.S. 1 (1976); Randall, 548 U.S. at 243 (plurality opinion). Justices
Kennedy, Souter, and Ginsburg, however, indicated that the defendants had not
asked the Court to overrule Buckley. See id. at 264 (Kennedy, J., concurring in the
judgment) (“The parties [do not] ask the Court to overrule Buckley in full . . . .”); id.
at 283 (Souter, J., dissenting) (“Vermont’s argument . . . does not ask us to over-
rule Buckley . . . .”).
140. See Randall, 548 U.S. at 241 (plurality opinion).
141. Id. at 243–44.
142. Id. at 244; see id. at 242 (citing the number times that the Court has applied
Buckley since it was decided).
143. Id. at 244 (“[T]his Court has followed Buckley, upholding and applying its
reasoning in later cases.”).
144. Id.
145. 551 U.S. 877 (2007).
146. 220 U.S. 373 (1911); see Leegin, 551 U.S. at 882.
147. See Leegin, 551 U.S. at 881.
No. 3] The Call on the Field 753
Court in Leegin indicated that, if it were considering the matter
in the first instance, it would not adopt a per se rule, but a rule
of reason under which the factfinder evaluates whether a par-
ticular vertical price restraint is anticompetitive and therefore
illegal under the Sherman Act.
148
Nevertheless, the Leegin Court acknowledged that it was not
“writ[ing] on a clean slate” and had to consider whether the
force of stare decisis was enough to sustain Dr. Miles.
149
The
Court determined that it was not.
150
Although it admitted stare
decisis’s potency in relation to statutory interpretation, the
Court stressed that the principle is weaker with respect to the
Sherman Act because the Court always has viewed the Act as
“a common-law statute” whose interpretation evolves as the
Court determines from time to time.
151
With economics experts
widely agreeing that restrictions on resale prices can be pro-
competitive and federal antitrust enforcement agencies recom-
mending against a per se rule, the Court explained, revisiting
Dr. Miles was appropriate.
152
The Court added that, since Dr.
Miles was decided, the Court had distanced itself from the rul-
ing’s underlying rationales and, in fact, began to “rein[] in the
decision” just eight years after the Court handed it down.
153
In
addition, according to the Court, it later had taken a more re-
laxed approach to vertical restraints on trade.
154
Moreover, the
Court asserted that Dr. Miles was “inconsistent with a princi-
pled framework” governing vertical restraints on trade, and
the Court expressed concern that failing to overrule Dr. Miles
would give rise to questions about the continuing validity of
more recent decisions.
155
The per se rule arising from Dr. Miles,
the Court concluded, “[was] a flawed antitrust doctrine that
serve[d] the interests of lawyers—by creating legal distinctions
that operate[d] as traps for the unwary—more than the interests
148. See id. at 885, 887–99.
149. Id. at 899.
150. Id. at 900 (“Stare decisis, we conclude, does not compel our continued ad-
herence to the per se rule against vertical price restraints.”).
151. Id. at 899.
152. See id.
153. Id. at 901 (citing United States v. Colgate & Co., 250 U.S. 300, 307–08 (1919)).
154. See id. at 901–02.
155. Id. at 902–03.
754 Harvard Journal of Law & Public Policy [Vol. 43
of consumers—by requiring manufacturers to choose second-
best options to achieve sound business objectives.”
156
Finally,
the Court explained that reliance interests could not “justify an
inefficient rule” and were not a significant consideration with
respect to Dr. Miles because the per se rule was relatively nar-
row, allowing manufacturers to achieve similar ends through
other means.
157
In contrast to the divisions in Randall and Leegin, the Court
spoke with one voice in Pearson v. Callahan
158
as it overruled the
requirement in Saucier v. Katz
159
that courts employ a rigid ana-
lytical structure in determining whether a defendant in an ac-
tion under 42 U.S.C § 1983 is entitled to qualified immunity.
160
The Pearson Court explained that Saucier required judges first
to evaluate whether the facts alleged or shown would support
a claim for a constitutional violation and then whether the vio-
lation was clear at the time the defendant took the offending
action.
161
Determining that stare decisis did not require other-
wise, the Court in Pearson ruled that a court has the discretion
to grant a defendant immunity from suit solely because a viola-
tion was unclear, without considering whether the facts alleged
or shown support the plaintiff’s claim that the defendant actu-
ally violated the plaintiff’s constitutional rights.
162
In reaching the decision to limit Saucier, the Court indicated
that the strength that stare decisis bears when precedent inter-
prets a statute or involves a matter that Congress may correct
does not apply to court-fashioned rules designed to govern ju-
dicial operations.
163
Moreover, the Court stated, “Revisiting
precedent is particularly appropriate where . . . a departure
would not upset expectations, the precedent consists of a
judge-made rule that was recently adopted to improve the op-
156. Id. at 904.
157. Id. at 906.
158. 555 U.S. 223 (2009).
159. 533 U.S. 194 (2001).
160. See Pearson, 555 U.S. at 227 (“We now hold that the Saucier procedure
should not be regarded as an inflexible requirement . . . .”).
161. Id. at 232 (citing Saucier, 533 U.S. at 201).
162. Id. at 231–36 (concluding that Saucier’s procedure “should no longer be
regarded as mandatory”).
163. See id. at 233–34.
No. 3] The Call on the Field 755
eration of the courts, and experience has pointed up the prece-
dent’s shortcomings.”
164
The Saucier rule, the Court insisted, all
the more warranted reconsideration given that lower court
judges and Justices on the Court repeatedly have criticized it.
165
The Pearson Court acknowledged that reliance interests can
be significant when a prior ruling implicates property or con-
tract rights, but it explained that that is not so with respect to
judicially-created trial court procedures.
166
According to the
Court, overruling Saucier’s mandate would not upset anyone’s
“settled expectations.”
167
And the Court stressed that the quality
of Saucier’s underlying reasoning and its workability were not
relevant because the decision did not involve constitutional or
statutory interpretation.
168
Instead, the Court emphasized, ex-
perience was the key consideration.
169
For the Court in Pearson, experience with Saucier’s procedure
weighed heavily in favor of abandoning it. First, according to
the Court, Saucier’s rule tended to waste both judicial resources
and parties’ resources with “[u]nnecessary litigation of consti-
tutional issues.”
170
Second, the Pearson Court observed that the
Saucier rule had failed to achieve one of its intended benefits—
developing a body of constitutional precedent.
171
Third, the
Court indicated that the rule might impede the ability of a party
who wins on the second prong to seek review of a decision
with respect to the first prong that would govern the party’s
future practices.
172
Fourth, the Court stressed, “Adherence to
[the Saucier structure] departs from the general rule of constitu-
tional avoidance and runs counter to the ‘older, wiser judicial
counsel not to pass on questions of constitutionality . . . unless
164. Id. at 233.
165. Id. at 234–35.
166. Id. at 233.
167. Id.
168. Id. at 234.
169. See id. (“[I]t is sufficient that we now have a considerable body of new ex-
perience to consider regarding the consequences of requiring adherence to this
inflexible procedure.”).
170. Id. at 237.
171. Id. at 237–41.
172. Id. at 240 (“Rigid adherence to the Saucier rule may make it hard for affected
parties to obtain appellate review of constitutional decisions that may have a seri-
ous prospective effect on their operations.”).
756 Harvard Journal of Law & Public Policy [Vol. 43
such adjudication is unavoidable.’”
173
Fifth, the Court identified
the rigid Saucier structure as an outlier, given the latitude lower
courts enjoy when making decisions with respect to compara-
ble matters.
174
And finally, the Pearson Court denied that modi-
fying Saucier’s mandate would be harmful, highlighting that
lower courts remained free to apply Saucier’s two-step ap-
proach
175
and rejecting the argument that relaxing the Saucier
rule would spawn suits against local governments or encour-
age litigation over standards for determining when a court
must consider the merits of a case.
176
The Court’s unanimity in Pearson was short-lived. Three
months after Pearson, the Court returned to a 5-4 split in Arizona
v. Gant,
177
a Fourth Amendment decision in which the Chief
Justice allied with Justices Kennedy, Breyer, and Alito in dis-
sent.
178
The Gant majority concluded that, under the Court’s
1981 decision in New York v. Belton
179
and its 2004 decision in
Thornton v. United States,
180
if no other exception to the warrant
requirement applies, a police officer may search an arrestee’s
vehicle without a warrant only when the arrestee has not been
secured and can reach the passenger compartment or when the
arresting officer reasonably believes that the compartment con-
tains evidence related to the crime associated with the arrest.
181
In reaching this decision, the Court refused to interpret Belton
as establishing a bright-line rule allowing an officer to search a
vehicle’s passenger compartment without a warrant when the
search is in connection with an arrest of a recent occupant of
the vehicle.
182
With the Chief Justice joining, Justice Alito argued in dissent
that the majority effectively overruled Belton and Thornton
173. Id. at 241 (quoting Scott v. Harris, 550 U.S. 372, 388 (Breyer, J., concurring))
(internal quotation marks omitted).
174. See id. at 241–42.
175. Id. at 242–43.
176. Id. at 243.
177. 556 U.S. 332 (2009).
178. Id. at 355 (Alito, J., dissenting).
179. 453 U.S. 454 (1981).
180. 541 U.S. 615 (2004).
181. See Gant, 556 U.S. at 343.
182. See id. (rejecting “a broad reading of Belton”).
No. 3] The Call on the Field 757
without the defendant’s request that it do so,
183
disposing of the
“bright-line” rule that the Belton Court adopted and that the
Thornton Court understood Belton to recognize.
184
According to
Justice Alito, the Gant Court should not have abandoned Belton’s
clear rule,
185
and he addressed five factors relevant to stare de-
cisis in reaching that conclusion: “whether the precedent has
engendered reliance, whether there has been an important
change in circumstances in the outside world, whether the
precedent has proved to be unworkable, whether the precedent
has been undermined by later decisions, and whether the deci-
sion was badly reasoned.”
186
Although Justice Alito acknowledged that reliance normally
is “most important” when property or contract rights are at is-
sue, he also emphasized that the Court has weighed reliance
“heavily” when a change would affect “embedded . . . routine
police practice.”
187
In addition, Justice Alito pointed out that
police work had not become any more or less risky than it was
when Belton was decided; therefore changed circumstances did
not justify departing from Belton.
188
And he insisted that the
broad reading given to Belton makes it very workable, supply-
ing a rule that both judges and law enforcement officials easily
can apply.
189
Rather, Justice Alito suggested, the Gant Court’s
new standard was the unworkable one, “reintroduc[ing] the
same sort of case-by-case, fact-specific decisionmaking that the
Belton rule was adopted to avoid.”
190
As to inconsistency with
later cases, Justice Alito noted none and that, in fact, the Court
in Thornton had “reaffirmed and extended” the rule.
191
More-
183. Id. at 356 (Alito, J., dissenting) (“Although the Court refuses to
acknowledge that it is overruling Belton and Thornton, there can be no doubt that
it does so.”); id. at 365 (“Respondent in this case has not asked us to overrule
Belton . . . .”).
184. See id. 356–57.
185. Id. at 358 (arguing that the principles underlying stare decisis “weigh in
favor of retaining the rule established in Belton”).
186. Id. at 358 (citations omitted).
187. Id. at 358–59 (quoting Dickerson v. United States, 530 U.S. 428, 443 (2000))
(internal quotation marks omitted).
188. See id. at 360.
189. Id.
190. Id.
191. Id. at 361.
758 Harvard Journal of Law & Public Policy [Vol. 43
over, contrary to the majority’s view that a broad interpretation
of Belton was inconsistent with the Court’s 1969 decision in
Chimel v. California,
192
Justice Alito maintained that Belton repre-
sented only a slight extension of the rule in Chimel that the area
subject to search extends just to the arrestee’s body and to the
area within which he or she might reach a weapon or evidence
that could be destroyed.
193
According to Justice Alito, Chimel
must have concluded that the measure of one’s reach is deter-
mined at the time of arrest, not at the time of the search, and
therefore, Belton merely avoided a case-by-case determination
of a particular person’s reach when he or she occupies a partic-
ular vehicle.
194
Later in the same term in which the Court decided Pearson
and Gant, Chief Justice Roberts was part of a five-Justice con-
servative majority in Montejo v. Louisiana
195
that overruled
Michigan v. Jackson,
196
a Sixth Amendment decision that
“forb[ade] police [from] initiat[ing] interrogation of a criminal
defendant once he has requested counsel at an arraignment or
similar proceeding.”
197
According to the Montejo Court, Jackson
was unnecessary because rules established in Fifth Amendment
cases sufficiently protect a defendant’s Sixth Amendment right
to counsel by barring certain conduct once a defendant ap-
proached for interrogation indicates that he or she wants an
attorney.
198
Addressing stare decisis, the Montejo Court identified work-
ability, Jackson’s age, reliance, and the quality of Jackson’s rea-
soning as the key considerations.
199
The Court in Montejo de-
voted quite a bit of attention to workability, explaining that the
rule from Jackson did not make sense in states where a defend-
192. 395 U.S. 752 (1969).
193. See Gant, 556 U.S. at 361–63 (Alito, J., dissenting).
194. See id. 362–63.
195. 556 U.S. 778 (2009).
196. 475 U.S. 625 (1986).
197. Montejo, 556 U.S. at 780–81.
198. See id. 794–95.
199. Id. at 792 (“[T]he fact that a decision has proved ‘unworkable’ is a tradi-
tional ground for overruling it.”(citing Payne v. Tennessee, 501 U.S. 808, 827
(1991))); id. at 792–93 (“Beyond workability, the relevant factors . . . include the
antiquity of the precedent, the reliance interests at stake, and of course whether the
decision was well reasoned.” (citing Pearson v. Callahan, 555 U.S. 223, 234–35 (2009))).
No. 3] The Call on the Field 759
ant is appointed counsel either as a matter of course or by the
court without any request.
200
The Court then determined that
Jackson’s over-twenty-year life was no impediment to overrul-
ing it, and it decided that reliance likewise was not an issue be-
cause criminal defendants who understood Jackson did not
need its protection and prosecutors remained free to limit
themselves as Jackson had required.
201
With respect to the quality of the Court’s reasoning in Jackson,
the Montejo Court indicated that, because the rule at issue was
a Court-created “prophylactic rule . . . to protect a constitutional
right,” the Court’s inquiry consisted of weighing the rule’s
costs against its benefits.
202
And according to the Court, Jackson’s
benefits were insufficient when compared with its costs.
203
The
purpose of the Jackson rule, the Court explained, was to prevent
“badgering” a defendant after the defendant asserts his or her
right to counsel, and Fifth Amendment precedents are ade-
quate for that end.
204
Acknowledging Jesse Montejo’s argument
that Fifth Amendment protection only applies when a defend-
ant is in custody, the Court indicated that protection otherwise
is not critical because a defendant who is not in custody has
other ways to avoid police attempts at interrogation without
counsel present.
205
Moreover, the Court pointed out the signifi-
cant costs associated with Jackson, including the societal effects
of deterring police from attempting to obtain voluntary confes-
sions and of letting guilty parties go free.
206
Chief Justice Roberts and the rest of the Montejo quintet got
together again in Citizens United v. FEC, a controversial 2010
decision that overruled Austin v. Michigan State Chamber of
Commerce
207
and part of McConnell v. FEC.
208
Citizens United in-
200. See id. at 784–85 (discussing the problems associated with the Louisiana
Supreme Court’s interpretation of Jackson).
201. Id. at 792–93.
202. Id. at 793.
203. Id. at 797 (concluding that the Jackson rule did not “pay its way” (quoting
United States v. Leon, 468 U.S. 897, 907 n.6 (1984)) (internal quotation marks omitted)).
204. Id. at 794–95.
205. See id. at 795 (“When a defendant is not in custody, he is in control, and
need only shut his door or walk away to avoid police badgering.”).
206. Id. at 796.
207. 494 U.S. 652 (1990).
208. 540 U.S. 93 (2003); Citizens United v. FEC, 558 U.S. 310, 365–66 (2010).
760 Harvard Journal of Law & Public Policy [Vol. 43
volved a First Amendment challenge to a federal campaign fi-
nance statute.
209
The statute barred a corporation from using its
general funds to pay for a communication to be made during
the period immediately before an election if the communication
mentions a candidate for federal office by name.
210
The Court in
McConnell had upheld the federal law, and according to the
Citizens United Court, McConnell was predicated on Austin,
211
a
1990 decision in which the Court rejected a challenge to a state
law prohibiting similar corporate expenditures with respect to
candidates for state office.
212
In overruling Austin and the part of McConnell that relied on
Austin, the Citizens United Court evaluated whether Austin
should enjoy the protection of stare decisis. And the following
factors, the Court indicated, typically guide a stare decisis in-
quiry: workability, a precedent’s age, reliance interests, the
quality of a precedent’s reasoning, and experience that
“point[s] up [a] precedent’s shortcomings.”
213
The Citizens United
Court, however, did not address workability or consider Austin’s
twenty-year age. According to the Court, the other factors
weighed heavily enough against Austin.
214
The Court in Citizens United commented that even the federal
statute’s proponents ignored Austin’s reasoning, turning in-
stead to other justifications for the decision, and that Austin
had “abandoned First Amendment principles” when it looked
to an earlier case that erroneously described the history of
campaign finance laws.
215
Regarding experience with Austin,
the Citizens United Court noted that parties usually find ways
around campaign finance laws and that continuing technologi-
cal changes in how information is delivered counsel against
restrictions on political speech “based on the corporate identity
209. Citizens United, 558 U.S. at 319, 321.
210. Id. at 320–21.
211. Id. at 331 (“The holding and validity of Austin were essential to the reason-
ing of the McConnell majority opinion . . . .”).
212. See id. at 347 (citing Austin, 494 U.S. at 695).
213. Id. at 362–63 (first citing Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009);
then quoting Pearson v. Callahan, 555 U.S. 223, 233 (2009)) (internal quotation
marks omitted).
214. Id. at 363–65.
215. Id. at 363.
No. 3] The Call on the Field 761
of the speaker and the content of the . . . speech.”
216
Finally, the
Court highlighted the absence of significant reliance on Austin,
explaining that reliance considerations are more important
where property and contract rights are at stake and stressing
that legislative reliance through enacting campaign finance
laws cannot prevent the Court from performing its duty to in-
terpret the law accurately.
217
Chief Justice Roberts joined in full the majority opinion in
Citizens United, but he also wrote separately to give particular
attention to stare decisis.
218
Notably, the Chief Justice empha-
sized that reexamining Austin was appropriate because the
Court had been asked to do so and because it could not grant
the plaintiffs relief on narrower grounds.
219
The Chief Justice’s concurring opinion in Citizens United did
not identify reaffirmation of an earlier decision as a relevant
stare decisis factor, but he made the point that, in the case of
Austin, earlier decisions could not “be understood as a reaffir-
mation” because the Court had not previously been asked to
overrule Austin.
220
In addition, the Chief Justice treated in detail
two specific issues: whether Austin deviated from earlier Court
decisions
221
and whether “adherence to [Austin] actually
[would] impede[] the stable and orderly adjudication of future
cases.”
222
With respect to the latter, the Chief Justice stressed
that a precedent may be an impediment when its “validity is so
hotly contested that it cannot reliably function as a basis for
decision in future cases,” when the underlying basis “threatens
to upend [the Court’s] settled jurisprudence in related areas of
law,” and when, to stand by the precedent, the Court must
adopt a justification different from the one underlying the
precedent.
223
According to the Chief Justice, all of these consid-
216. Id. at 364.
217. Id. at 365.
218. Id. at 372–85 (Roberts, C.J., concurring).
219. Id. at 374–76.
220. Id. at 377.
221. Id. at 378 (indicating that returning to previous decisions might more effec-
tively serve the function of stare decisis).
222. Id. at 379.
223. Id.
762 Harvard Journal of Law & Public Policy [Vol. 43
erations tipped in favor of departing from the principle of stare
decisis with respect to Austin.
224
First, the Chief Justice asserted, Austin “departed from the
robust protections” the Court otherwise had accorded to politi-
cal speech and from the previously-held view that speech does
not receive less First Amendment protection just because a cor-
poration is the speaker.
225
Second, the Chief Justice observed
that Austin had not merely been controversial, but that the level
of disagreement with the decision “undermine[d] [Austin]’s
ability to contribute to the stable and orderly development of
the law.”
226
Third, the Chief Justice pointed to the fact that Austin
had been extended beyond its scope to curtail First Amendment
protection and that it might reach further in the future, threat-
ening the speech protection that media corporations enjoy:
“[B]ecause Austin is so difficult to confine to its facts—and be-
cause its logic threatens to undermine our First Amendment
jurisprudence and the nature of public discourse more broadly—
the costs of giving it stare decisis effect are unusually high.”
227
Finally, the Chief Justice called attention to the federal gov-
ernment’s having abandoned the original arguments in favor
of Austin’s holding, instead attempting to advance two argu-
ments that the Austin Court did not consider.
228
The Chief Justice
emphasized: “Stare decisis is a doctrine of preservation, not
transformation. It counsels deference to past mistakes, but pro-
vides no justification for making new ones. . . . [A]llow[ing] the
Court’s past missteps to spawn future mistakes [would] under-
cut[] the very rule-of-law values that stare decisis is designed to
protect.”
229
In 2015, five years after Citizens United,
230
Chief Justice Roberts
once again espoused a weak form of stare decisis, this time in a
224. Id.
225. Id. at 379–80.
226. Id. at 380.
227. Id. at 382.
228. Id. at 383 (“Th[e] interests [the government asserted] may or may not sup-
port the result in Austin, but they were plainly not part of the reasoning on which
Austin relied.”).
229. Id. at 384.
230. Three years after Citizens United, the Chief Justice dissented from the
Court’s decision in Alleyne v. United States, 570 U.S. 99 (2013), but stated that he
“w[ould] not quibble with the majority’s application of our stare decisis prece-
No. 3] The Call on the Field 763
statutory context. In Kimble v. Marvel Entertainment, LLC, the
Chief Justice joined in Justice Alito’s dissent to the Court’s de-
cision to uphold its 1964 ruling in Brulotte v. Thys Co.,
231
a case
in which the Court concluded that federal patent law bars a
patent holder from receiving royalties for use of the patented
invention after the patent’s term has ended.
232
Though the majority acknowledged that both courts and
commentators had been urging the Court to abandon Brulotte,
the Kimble Court decided to sustain Brulotte on the grounds of
stare decisis.
233
In so doing, the Court noted the principle’s
power with respect to statutory interpretation.
234
In that regard,
dents.” Id. at 132 (Roberts, C.J., dissenting). Curiously, though, the majority opin-
ion in Alleyne gave no specific attention to stare decisis other than to state that it is
least potent when a procedural rule offering central protection under the Consti-
tution is at issue. See id. at 116 n.5 (majority opinion) (“The force of stare decisis is
at its nadir in cases concerning procedural rules that implicate fundamental con-
stitutional protections.”).
Justice Sotomayor, however, in a concurrence that only Justices Ginsburg and
Kagan joined, addressed stare decisis in some detail. Id. at 118–22 (Sotomayor, J.,
concurring). In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545
(2002), a 2002 decision in which the Court had concluded that it was not incon-
sistent with the Sixth Amendment’s right to a jury trial to permit a judge to in-
crease a mandatory minimum sentence following the judge’s own determination
by a preponderance of the evidence that aggravating factor existed. Alleyne, 570
U.S. at 103. In her concurrence, Justice Sotomayor considered minimal any reli-
ance interest that state and federal governments had because prosecutors could
alter their practices with respect to indictments. Id. at 119 (Sotomayor, J., concur-
ring). In addition, according to Justice Sotomayor, the weakness of Harris was
evident because, after the decision, the Court continued to apply an earlier deci-
sion to limit mandatory sentencing schemes. See id. at 119–20 (discussing applica-
tion of Apprendi v. New Jersey, 530 U.S. 466 (2000), following Harris). Moreover,
Justice Sotomayor indicated that only a minority of the Justices in Harris had
agreed with a key point, and she emphasized that the Court in Seminole Tribe v.
Florida, 517 U.S. 44 (1996), had explained that “a decision may be ‘of questionable
precedential value’ when ‘a majority of the Court expressly disagreed with the
rationale of [a] plurality.” Alleyne, 570 U.S. at 120 (Sotomayor, J., concurring) (al-
teration in original) (quoting Seminole Tribe, 517 U.S. at 66).
231. 379 U.S. 29 (1964); see Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2405
(2015) (declining to overrule Brulotte); id. at 2415–19 (Alito, J., dissenting).
232. See Kimble, 135 S. Ct. at 2405 (majority opinion).
233. Id. at 2406 (“[S]ome courts and commentators have suggested [that] we
should overrule Brulotte. For reasons of stare decisis, we demur.” (footnote omitted)).
234. Id. at 2409 (“[S]tare decisis carries enhanced force when a decision, like
Brulotte, interprets a statute.”); id. at 2410 (“[W]e have often recognized that
in . . . ‘cases involving property and contract rights’ . . . considerations favoring
stare decisis are ‘at their acme.’” (quoting Payne v. Tennessee, 501 U.S. 808, 828
(1991); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))).
764 Harvard Journal of Law & Public Policy [Vol. 43
the Court emphasized that “Congress has spurned multiple
opportunities to reverse Brulotte—openings as frequent and
clear as this Court ever sees,”
235
and, the Court added, with
property and contracts at issue, reliance interests carry consid-
erable weight because parties have ordered their affairs with
Brulotte in mind.
236
Given Congress’s failure to act and the reli-
ance interests at stake, the Court declared, Brulotte enjoyed a
“superpowered form of stare decisis, [requiring] a superspecial
justification to warrant revers[al].”
237
With this high bar in the background, the Court contended
that Brulotte’s foundations had not diminished—that the statu-
tory text had not changed, that cases from which Brulotte drew
continued to stand, and that later rulings have not left Brulotte
as a “doctrinal dinosaur.”
238
In addition, the Court maintained
that Brulotte’s rule is eminently workable, offering a clear and
bright line.
239
Stephen Kimble failed to convince the Court to overrule
Brulotte because the earlier ruling was founded on the flawed
economic assumption that requiring royalties for post-
effectiveness use is anticompetitive.
240
Although the Kimble
Court saw no reason to discredit the broad scholarly consensus
that supported Kimble’s argument,
241
the Court found the con-
sensus insufficient to overcome stare decisis given that Brulotte
was a patent case rather than an antitrust case where stare de-
cisis carries much less weight.
242
In addition, the Kimble Court
concluded that the erroneous economic principle that Kimble
cited had not served as the basis for Brulotte, but that the deci-
sion instead relied on “a categorical principle that all patents,
and all benefits from them, must end when their terms expire.”
243
Finally, the Court in Kimble rejected the plea to overturn
Brulotte because it discouraged the type of innovation that patent
235. Id. at 2409–10.
236. Id. at 2410.
237. Id.
238. Id. at 2410–11.
239. Id.
240. Id. at 2412.
241. Id. (“We do not join issue with Kimble’s economics . . . .”).
242. Id. at 2412–13.
243. Id. at 2413 (citing Brulotte v. Thys Co., 379 U.S. 29, 30–32 (1964)).
No. 3] The Call on the Field 765
law is intended to foster.
244
According to the Court, the judiciary
is ill-suited to decide that matter and Congress is the proper
venue for a debate over the effect of Brulotte on invention.
245
Justice Alito disagreed, and joined by the Chief Justice, blasted
the Kimble majority’s application of stare decisis to keep
Brulotte:
The Court employs stare decisis, normally a tool of re-
straint, to reaffirm a clear case of judicial overreach. Our de-
cision in Brulotte . . . was not based on anything that can
plausibly be regarded as an interpretation of the terms of the
Patent Act. It was based instead on an economic theory—
and one that has been debunked. . . . Stare decisis does not
require us to retain this baseless and damaging precedent.
246
Noting the absence of any language in the Patent Act regarding
post-term royalties, Justice Alito described Brulotte as a “bald
act of policymaking” and “not really statutory interpretation at
all.”
247
Moreover, Justice Alito stressed that, in Brulotte’s ap-
proximately fifty-year history, the underlying economic ra-
tionale had become indefensible.
248
Allowing Brulotte to live on,
he insisted, was economically harmful, unduly inhibiting the
ability of parties to achieve their goals.
249
Furthermore, accord-
ing to Justice Alito, Marvel Entertainment had offered no evi-
dence of reliance, and given that Marvel did not know of the
Brulotte rule when negotiating its license with Kimble, any
suggestion that other parties were relying on the rule was a
fantasy.
250
In fact, Justice Alito asserted, Brulotte itself had had
the effect of upsetting commercial expectations.
251
Justice Alito insisted that the Court does “not give super-
duper protection to decisions that do not actually interpret a
statute”
252
and that cases involving pure policymaking should
244. See id. (addressing Brulotte’s foundations).
245. Id. at 2414.
246. Id. at 2415 (Alito, J., dissenting).
247. Id.
248. Id.
249. Id. at 2416 (explaining harms associated with Brulotte’s rule).
250. Id. at 2417.
251. Id.
252. Id. at 2418.
766 Harvard Journal of Law & Public Policy [Vol. 43
enjoy the same stare decisis effect as antitrust decisions.
253
Finally,
Justice Alito assailed the majority for relying on the absence of
congressional action as a reason to keep Brulotte, explaining
that “[p]assing legislation is no easy task” and therefore the
Court should not be too quick to equate a failure to act with
approbation.
254
Within days after the Court’s refusal to dispose of Brulotte,
Chief Justice Roberts was part of the six-Justice majority with
two additional Justices concurring in the judgment in Johnson v.
United States
255
that overruled two decisions that had interpreted
the Armed Career Criminal Act of 1984
256
(ACCA)—James v.
United States
257
and Sykes v. United States.
258
In James and Sykes,
the Court declined to strike down the “residual clause” of the
ACCA as unconstitutionally vague under the Due Process
Clause of the Fifth Amendment.
259
Admitting that the Court
had not succeeded in adopting a generally applicable test for
applying the residual clause, the Johnson Court decided that
James and Sykes were wrong about the clause’s constitutionality.
260
Furthermore, the Johnson Court determined that stare decisis
could not save James or Sykes.
261
The Court in Johnson dismissed
out of hand any argument that a reliance interest supported the
two decisions.
262
More importantly, the Court explained that
stare decisis does not prevent it from reconsidering a decision
“where experience with its application reveals that it is un-
workable”—even when the Court reached the decision based
on a well-developed record.
263
Revisiting James and Sykes was
253. Id. (likening Brulotte to an antitrust decision).
254. See id. at 2418–19.
255. 135 S. Ct. 2551 (2015).
256. 18 U.S.C. § 924(e) (2018).
257. 550 U.S. 192 (2007).
258. 564 U.S. 1 (2011); Johnson, 135 S. Ct. at 2555, 2563.
259. Johnson, 135 S. Ct. at 2555–56.
260. Id. at 2557 (“We are convinced that the indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair notice to defendants and
invites arbitrary enforcement by judges. Increasing a defendant’s sentence under
the clause denies due process of law.”).
261. Id. at 2562–63.
262. See id. at 2563 (“[D]eparting from [James and Sykes] does not raise any con-
cerns about upsetting private reliance interests.”).
263. Id. at 2562 (first citing Payne v. Tennessee, 501 U.S. 808, 827 (1991); then
citing United States v. Dixon, 509 U.S. 688, 711 (1993); Payne, 501 U.S. at 828–30).
No. 3] The Call on the Field 767
all the more appropriate, the Johnson Court explained, because
the vagueness issue had not been fully briefed or argued in
either case,
264
and experience in applying the residual clause
testified to errors the Court had made:
Unlike other judicial mistakes that need correction, the error
of having rejected a vagueness challenge manifests itself
precisely in subsequent judicial decisions: the inability of
later opinions to impart the predictability that the earlier
opinion forecast. . . . Even after Sykes tried to clarify the re-
sidual clause’s meaning, the provision remains a “judicial
morass that defies systemic solution,” “a black hole of con-
fusion and uncertainty” that frustrates any effort to impart
“some sense of order and direction.”
265
In Hurst v. Florida,
266
a 7-1-1 decision with the Chief Justice in
the majority, the Court overruled in part two more prece-
dents—Spaziano v. Florida
267
and Hildwin v. Florida.
268
According
to the Court in Hurst, the Spaziano and Hildwin Courts had in-
correctly concluded that the Sixth Amendment does not require
that the jury determine the existence of aggravating factors be-
fore a court may impose the death penalty.
269
In reaching its decision, the Hurst Court dispensed with stare
decisis quickly, focusing on Spaziano’s and Hildwin’s incon-
sistency with the Court’s 2000 opinion in Apprendi v. New Jersey
270
and on the Court’s 2002 decision in Ring v. Arizona
271
to over-
rule another pre-Apprendi case in which the Court had relied on
Hildwin.
272
“[I]n the Apprendi context,” the Court explained,
“stare decisis does not compel adherence to a decision whose
264. Id. at 2562–63.
265. Id. at 2562 (quoting United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011)
(Agee, J., concurring)).
266. 136 S. Ct. 616 (2016).
267. 468 U.S. 447 (1984).
268. 490 U.S. 638 (1989); Hurst, 136 S. Ct. at 624.
269. Hurst, 136 S. Ct. at 623 (“Spaziano and Hildwin summarized earlier prece-
dent to conclude that ‘the Sixth Amendment does not require that the specific
findings authorizing the imposition of the sentence of death be made by the jury.’”
(quoting Hildwin, 490 U.S. at 640–41)).
270. 530 U.S. 466 (2000).
271. 536 U.S. 584 (2002).
272. See Hurst, 136 S. Ct. at 623 (concluding that Spaziano and Hildwin were
“irreconcilable” with Apprendi, and discussing Ring).
768 Harvard Journal of Law & Public Policy [Vol. 43
underpinnings have been eroded by subsequent developments
of constitutional law.”
273
Making up for its brevity in Hurst, the Court gave extensive
attention to stare decisis in Janus v. AFSCME,
274
a 2018 case in
which the Court overturned its 1977 decision in Abood v. Detroit
Board of Education.
275
In Janus, the Court considered the consti-
tutionality of an Illinois law compelling a public employee to
pay fees to a union even when the employee does not join the
union and disagrees intensely with the union’s positions in col-
lective bargaining and other matters.
276
The Illinois law was
similar to one the Court in Abood had upheld against a First
Amendment challenge,
277
but the Janus Court concluded that
requiring a public employee who is not a union member to
subsidize union activities offends the First Amendment.
278
Addressing stare decisis, the Janus Court noted that the prin-
ciple is “at its weakest” in constitutional matters
279
and perhaps
enjoys the “least force” in the First Amendment context.
280
To
guide its evaluation of Abood amidst such feebleness, the Court
identified five factors: “the quality of Abood’s reasoning, the
workability of the rule it established, its consistency with other
related decisions, developments since the decision was handed
down, and reliance on the decision.”
281
After giving studied
attention to all of these factors, the Court decided that stare de-
cisis was not enough to sustain Abood.
282
First, the Court cited significant problems in the Abood
Court’s reasoning.
283
According to the Court in Janus, Abood re-
273. Id. at 623–24 (quoting Alleyne v. United States, 570 U.S. 99, 119 (2013)
(Sotomayor, J., concurring)) (internal quotation marks omitted).
274. 138 S. Ct. 2448 (2018).
275. 431 U.S. 209 (1977); Janus, 138 S. Ct at 2460.
276. Janus, 138 S. Ct. at 2459–60.
277. Id. at 2460.
278. Id. (“We conclude that this arrangement violates the free speech rights of
nonmembers by compelling them to subsidize private speech on matters of sub-
stantial public concern.”).
279. Id. at 2478 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)) (internal
quotation marks omitted).
280. Id.
281. Id. at 2478–79.
282. Id. at 2479 (“After analyzing these factors, we conclude that stare decisis
does not require us to retain Abood.”).
283. Id. at 2480–81.
No. 3] The Call on the Field 769
lied on two previous cases that were inapposite to its decision
because they dealt with Congress’s authorization of private-
sector unions and focused on Commerce Clause and substan-
tive due process issues, with only scant attention to the First
Amendment.
284
In addition, the Janus Court indicated, the
Court in Abood applied a deferential standard of review that is
foreign to free speech cases, and if the Court had applied the
appropriate standard, it might have invalidated the law it was
considering.
285
Moreover, the Court in Janus asserted, the Abood
Court failed to grasp the importance of the context in which the
law operated and the nature of the speech that was at issue.
286
Second, the Court in Janus concluded that the rule in Abood
was unworkable.
287
Abood, the Janus Court observed, attempted
to draw a line between expenses that may be charged to non-
union members and those that may not, and the test the Court
later adopted in Lehnert v. Ferris Faculty Ass’n
288
to assist in
making that distinction had resulted in splintered decisions
and spawned litigation: “Lehnert failed to settle the matter;
States and unions have continued to ‘give it a try’ ever since.”
289
Furthermore, the Janus Court pointed out that even the re-
spondents in the case acknowledged the difficulty in distin-
guishing between chargeable and non-chargeable expenses,
thus undermining the forty-year standard’s workability.
290
Moreover, the Court noted that practical problems impeded
the ability of nonunion members to challenge the union’s allo-
cation of expenses.
291
Third, the Court in Janus identified legal and factual devel-
opments that had “‘eroded’ [Abood]’s ‘underpinnings,’” making
284. See id. at 2479 (discussing Ry. Emps. v. Hanson, 351 U.S. 225 (1956), and
Machinists v. Street, 367 U.S. 740 (1961)).
285. Id. at 2479–80.
286. Id. at 2480 (“Abood failed to appreciate the conceptual difficulty of distin-
guishing in public-sector cases between union expenditures that are made for
collective-bargaining purposes and those that are made to achieve political ends.”
(quoting Harris v. Quinn, 573 U.S. 616, 636 (2014)) (internal quotation marks omitted)).
287. Id. at 2481–82.
288. 500 U.S. 507 (1991).
289. Janus, 138 S. Ct. at 2481.
290. See id. at 2481 (discussing the respondents’ suggestion that the Court revisit
how to distinguish between chargeable and non-chargeable expenses).
291. See id. at 2482.
770 Harvard Journal of Law & Public Policy [Vol. 43
the decision “an outlier among [the Court’s] First Amendment
cases.”
292
According to the Janus Court, one of the assumptions
underlying Abood had proven to be false.
293
In addition, the
Court reported, at the time Abood was decided, public-sector
unions were in their infancy, and since then they have blos-
somed, with a significant impact on state and local government
costs, “giv[ing] collective-bargaining issues a political valence
that Abood did not fully appreciate.”
294
Furthermore, the Court
pointed out that Abood’s failure to apply heightened scrutiny is
inconsistent with more recent cases in which the Court has
held that public employees usually cannot be forced to provide
funding to a political party.
295
Finally, the Janus Court determined that reliance interests
could not buoy Abood.
296
The Court stressed that overruling
Abood would merely have a short-term effect on existing collec-
tive bargaining agreements and that “it would be unconsciona-
ble to permit free speech rights to be abridged in perpetuity in
order to preserve contract provisions that will expire on their
own in a few years’ time.”
297
The Court also emphasized that
the uncertainty surrounding the Abood standard and the divi-
sions on the Court surrounding its viability undermined union
reliance.
298
Last, the Court explained that unions have the abil-
ity to protect themselves in their collective bargaining agree-
ments if agency fees are essential.
299
A year after Janus, the Court returned to stare decisis in the
constitutional context with three decisions, and Chief Justice
Roberts was part of the majority in all three. In the first, Franchise
Tax Board v. Hyatt, the Court overruled Nevada v. Hall, a 1979
decision in which the Court had held that a state is not immune
292. Id. (quoting United States v. Gaudin, 515 U.S. 506, 521 (1995)).
293. See id. at 2465 (“Abood cited no evidence that the pandemonium it imagined
would result if agency fees were not allowed, and it is now clear that Abood’s fears
were unfounded.”).
294. Id. at 2483.
295. Id. at 2484 (discussing the Court’s “political patronage” cases).
296. Id.
297. Id.
298. Id. at 2485 (“[A]ny public-sector union seeking an agency-fee provision in a
collective-bargaining agreement must have understood that the constitutionality
of such a provision was uncertain.”).
299. See id. at 2485.
No. 3] The Call on the Field 771
from a suit by a private plaintiff in another state’s courts.
300
Drawing on the understanding of state sovereignty that existed
at the nation’s Founding, the Court in Hyatt concluded that the
Hall Court had gone off course.
301
According to the Hyatt Court, stare decisis could not save
Hall.
302
Unlike in Janus, however, the Court in Hyatt considered
just four stare decisis factors: “the quality of [Hall]’s reasoning;
its consistency with related decisions; legal developments since
[Hall]; and reliance.”
303
And the Court dispensed with all four
quickly. The Court first pointed out that Hall’s reasoning was
divorced from the historical understanding of the immunity
that states would enjoy in relation to each other.
304
Moreover,
the Court noted that Hall represented a departure from the
Court’s sovereign immunity corpus, particularly when consid-
ered against recent cases.
305
Finally, the Court identified no re-
liance interest that weighed in favor of retaining Hall.
306
Al-
though it sympathized with the plaintiff’s loss of time and
money in pursuing his claim based on Hall, the Court indicated
that reliance of this type does not carry weight for stare decisis
purposes because the prospect that the Court will overturn a
critical prior ruling is ever present when one pursues a legal
claim.
307
In Gamble v. United States—the second of the three 2019 cases
implicating stare decisis with respect to a constitutional prece-
dent—the Court refused to overrule a long line of precedents
holding that the Fifth Amendment’s Double Jeopardy Clause
does not proscribe prosecution in separate proceedings of an
300. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1492 (2019); Nevada v. Hall, 440
U.S. 410, 426–27 (1979).
301. See Hyatt, 139 S. Ct. at 1492 (“Nevada v. Hall is contrary to our constitutional
design and the understanding of sovereign immunity shared by the States that
ratified the Constitution.”).
302. Id. at 1499.
303. Id. (citing Janus, 138 S. Ct. at 2478–79; United States v. Gaudin, 515 U.S. 506,
521 (1995)).
304. Id.
305. Id. (“Hall stands as an outlier in our sovereign-immunity jurisprudence,
particularly when compared to more recent decisions.”); id. at 1496 (citing other
cases addressing sovereign immunity).
306. See id. at 1499.
307. Id.
772 Harvard Journal of Law & Public Policy [Vol. 43
offense under state law and an offense under federal law, even
when both offenses arise out of the same set of facts.
308
Noting
that the Fifth Amendment bars prosecution more than once for
an “offence,” the Court explained that, because both the state
and the United States are separate sovereigns, an offense under
federal law is different from one under state law.
309
The Court in Gamble highlighted the extremely high burden
that the defendant had to meet to persuade the Court that it
had erred in its previous decisions and therefore should dis-
card them:
[E]ven in constitutional cases, . . . something more than
“ambiguous historical evidence” is required before we will
“flatly overrule a number of major decisions of this Court.”
And the strength of the case for adhering to such decisions
grows in proportion to their “antiquity.” Here, . . . Gamble’s
historical arguments must overcome numerous “major deci-
sions of this Court” spanning 170 years. In light of these fac-
tors, Gamble’s historical evidence must, at a minimum, be
better than middling.
310
According to the Court, Terance Gamble had not satisfied the
minimum.
311
Among other things, the Court noted the absence
of directly applicable reported cases, that some of the cases
Gamble proffered undermined his argument, that the evidence
Gamble attempted to draw from a seventeenth-century case
was less than conclusive, and that two of the cases Gamble cited
did not rely on the principle Gamble was asserting.
312
Moreover,
the Court indicated that an earlier case had considered some of
Gamble’s arguments and rejected them, and nothing had changed
since then that would make those arguments more powerful.
313
308. Gamble v. United States, 139 S. Ct. 1960, 1964 (2019) (affirming precedent
supporting the “dual-sovereignty” doctrine).
309. Id. at 1963–64 (quoting U.S.
CONST. amend. V).
310. Id. at 1969 (first quoting Welch v. Tex. Dept. of Highways & Pub. Transp.,
483 U.S. 468, 479 (1987); then quoting Montejo v. Louisiana, 556 U.S. 778, 792
(2009)).
311. Id.
312. Id. at 1973–74.
313. Id. at 1974 (“Surveying the pre-Fifth Amendment cases in 1959, we con-
cluded that their probative value was ‘dubious’ due to ‘confused and inadequate
reporting.’ Our assessment was accurate then, and the passing years have not
made those early cases any clearer or more valuable.” (quoting Bartkus v. Illinois,
359 U.S. 121, 128 n.9 (1959))); id. at 1976 (“When we turn from 19th-century trea-
No. 3] The Call on the Field 773
Having assigned Justices Thomas and Alito the majority
opinions in Hyatt and Gamble, Chief Justice Roberts himself
took on the responsibility of drafting the last of the Court’s
2019 constitutional stare decisis opinions. In Knick v. Township
of Scott, the Court concluded that a violation of the Takings
Clause under the Fifth Amendment occurs immediately when
a government takes property without compensation and that a
property owner may sue in federal court under 42 U.S.C. § 1983
right away.
314
In reaching that conclusion, the Court overruled
Williamson County Regional Planning Commission v. Hamilton
Bank, a 1985 decision in which the Court had held that a prop-
erty owner must be unsuccessful in seeking compensation in
state court and under state law before a taking violates the
Fifth Amendment.
315
Noting that stare decisis is “at its weakest” with respect to
decisions interpreting the Constitution,
316
Chief Justice Roberts
evaluated Williamson County using four of the stare decisis fac-
tors identified in Janus (but not the same ones the Court em-
ployed in Hyatt): “the quality of [the precedent’s] reasoning,
the workability of the rule it established, its consistency with
other related decisions, . . . and reliance on the decision.”
317
Ac-
cording to the Chief Justice, Williamson County failed at every
turn.
318
First, the Chief Justice emphasized that Williamson County
was “exceptionally ill founded,” drawing on dicta from another
opinion, ignoring more recent decisions, and conflicting with
the Court’s customary approach to takings.
319
Moreover, the
Chief Justice noted that Justices later had discredited Williamson
tises to 19th-century state cases, Gamble’s argument appears no stronger. The last
time we looked, we found these state cases to be ‘inconclusive.’” (quoting Bartkus,
359 U.S. at 131)).
314. 139 S. Ct. 2162, 2172 (2019) (“[B]ecause a taking without compensation vio-
lates the self-executing Fifth Amendment at the time of the taking, the property
owner can bring a federal suit at that time.”).
315. See id. at 2167 (reciting the holding in Williamson County); id. at 2170 (“Fidel-
ity to the Takings Clause and our cases construing it requires overruling William-
son County . . . .”).
316. Id. at 2177 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)).
317. Id. at 2178 (quoting Janus v. AFSCME, 138 S. Ct. 2448, 2478 (2018)) (internal
quotation marks omitted).
318. Id. (“All of these factors counsel in favor of overruling Williamson County.”).
319. Id.
774 Harvard Journal of Law & Public Policy [Vol. 43
County, as had scholars, including those who defend requiring
a property owner to litigate takings in state court.
320
In addition,
according to the Knick Court, the justifications for Williamson
County’s rule had shifted over time: “The fact that the justifica-
tion for the state-litigation requirement continues to evolve is
another factor undermining the force of stare decisis.”
321
Second, the Knick Court decided that Williamson County had
created an indefensible consequence that made the decision
unworkable. As a result of Williamson County, the Court ex-
plained, an unsuccessful state court plaintiff could not pursue a
federal takings claim because the federal full faith and credit
statute requires a federal court to give preclusive effect to the
state court judgment.
322
Furthermore, Chief Justice Roberts re-
jected the dissent’s argument that Williamson County should
enjoy a heartier version of stare decisis given Congress’s power
to amend the full faith and credit statute to eliminate the prob-
lem.
323
For the Chief Justice, that was not enough. Congressional
action, he pointed out, could not fix Williamson County’s incor-
rect interpretation of the Fifth Amendment.
324
Finally, the Court in Knick found that reliance interests did
not counsel against overruling Williamson County. The Knick
Court observed that stare decisis is weaker when the relevant
rule does not deal with what behavior is lawful and what is
not.
325
And according to the Court, overruling Williamson County
would not subject governments to greater liability, but only
allow a plaintiff to bring a federal court action in place of a
state court action.
326
Unlike in Knick, reliance interests weighed heavily in the
Chief Justice’s vote in Ramos v. Louisiana, a 2020 case in which
the Court gave significant attention to stare decisis in a patch-
work of opinions that combined to reach five votes to overrule
320. Id.
321. Id. (citing Janus, 138 S. Ct. at 2472).
322. Id. at 2178–79.
323. Id. at 2179.
324. See id.
325. Id. (“We have recognized that the force of stare decisis is ‘reduced’ when
rules that do not ‘serve as a guide to lawful behavior’ are at issue.” (quoting United
States v. Gaudin, 515 U.S. 506, 521 (1995))).
326. Id.
No. 3] The Call on the Field 775
Apodaca v. Oregon.
327
This time, the Chief Justice found himself
out of step with the majority and joined Justices Alito and Kagan
in dissent.
328
The Court handed down Apodaca, a ruling that turned away
a Sixth Amendment challenge to an Oregon rule permitting
nonunanimous verdicts for criminal convictions,
329
just eight
months before Roe. In Ramos, the Court evaluated Apodaca under
the four stare decisis factors cited in Hyatt and concluded that
none of them reflected favorably on the 1972 decision.
330
First,
the Court in Ramos described Apodaca not just as wrong, but as
“gravely mistaken.”
331
According to the Ramos Court, the under-
lying reasoning in the two opinions that resulted in Apodaca’s
holding widely missed the mark, ignoring the Sixth
Amendment’s historical underpinnings, Court decisions inter-
preting the amendment to require unanimity, and the Oregon
rule’s racist patrimony.
332
Moreover, the Court in Ramos criti-
cized the Apodaca four-member plurality’s use of “an incom-
plete functionalist analysis of its own creation” to support the
constitutionality of nonunanimous verdicts, and spurned the
fifth, concurring Justice’s stubborn adherence to a view the
Court long since had abandoned.
333
Second, pointing to eight Court decisions after Apodaca that
referred to a unanimity requirement, the Ramos Court asserted
that Apodaca had departed from related decisions and that legal
developments had left the precedent behind.
334
Finally, observ-
ing “that neither Louisiana nor Oregon claim[ed] anything like
the prospective economic, regulatory, or social disruption liti-
gants seeking to preserve precedent usually invoke” nor “that
nonunanimous verdicts have ‘become part of our national cul-
327. See Ramos v. Louisiana, 140 S. Ct. 1390, 1404–08 (2020) (overruling Apodaca
v. Oregon, 406 U.S. 404 (1972)); see id. at 1432 n.17 (Alito, J., dissenting) (describing
the various opinions that result in the Court’s decision).
328. See id. at 1425 (Alito, J., dissenting) (“I would not overrule Apodaca.”).
329. See id. at 1398–99 (majority opinion).
330. Id. at 1405 (citing Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019)).
331. Id.
332. See id. at 1397–1401.
333. Id. at 1405; see id. at 1398 (describing Justice Powell’s “belief in ‘dual-track’
incorporation”).
334. See id. at 1399 n.35 (listing eight cases); id. at 1405–06 (discussing jurispru-
dential considerations).
776 Harvard Journal of Law & Public Policy [Vol. 43
ture,’” the Court in Ramos dismissed the contention that over-
ruling Apodaca would upend the reliance courts in Louisiana
and Oregon had placed on the precedent in conducting crimi-
nal trials for nearly fifty years.
335
These judicial reliance interests, however, apparently moved
the Chief Justice to join Justice Alito’s Ramos dissent.
336
Justice
Alito devoted quite a bit of his opinion to reliance, but before
doing so, he explained why the majority’s criticisms of the
Apodaca Court’s reasoning were “overblown.”
337
Although
Justice Alito would not say whether he agreed with the Apodaca
plurality, he defended the plurality’s reasoning, explaining in
significant detail why the underlying rationales were not as
flawed as the Ramos majority charged.
338
Moreover, responding
to the majority’s arguments about developments and Apodaca’s
fit with related decisions, Justice Alito contended that the ma-
jority disregarded how Apodaca was “intertwined” with the
Court’s Sixth Amendment jurisprudence.
339
Reliance interests, though, were what carried the day for Justice
Alito and the Chief Justice.
340
Justice Alito expressed serious
concerns about what overruling Apodaca would mean for the
“thousands and thousands” of trials that Louisiana and Oregon
had conducted in reliance on the precedent.
341
According to
Justice Alito, disposing of Apodaca threatened to unleash a tor-
rent of direct and collateral challenges to criminal convic-
tions.
342
The risk of this type of upheaval, Justice Alito insisted,
is significant and real, and the weak, nonexistent, “air[y],” and
“abstract” reliance interests presented in Hyatt, Wayfair, Pearson,
Montejo, Citizens United, and Janus paled in comparison.
343
335. Id. at 1406 (quoting Dickerson v. United States, 530 U.S. 428, 443 (2000)).
336. See id. at 1436 (Alito, J., dissenting) (“What convinces me that Apodaca
should be retained are the enormous reliance interests of Louisiana and Oregon.”).
337. Id. at 1433.
338. See id. at 1433–35.
339. Id. at 1436.
340. Justice Kagan did not join the portion of Justice Alito’s dissent that consid-
ered reliance.
341. Ramos, 140 S. Ct. at 1436.
342. See id. at 1438–40.
343. See id. at 1439.
No. 3] The Call on the Field 777
II. CONVINCING THE CHIEF JUSTICE
Justice Thomas repeatedly has expressed hostility to Roe and its
progeny,
344
and he is resolute that faithfulness to the Constitution
demands that the Court overrule errant decisions, other con-
siderations associated with stare decisis be damned.
345
Justice
Thomas needs no convincing; if presented with the opportunity,
he will vote to overrule Roe.
It is not so easy with Chief Justice Roberts. Although he has
dissented in the two significant abortion cases that have come
before the Court since he joined its ranks, the Chief Justice him-
self has not expressed disagreement with, nor has he joined an
opinion expressing disagreement with, Roe’s premises.
346
Moreover, his concurrence in Citizens United and the majority
opinions he authored in Halliburton and Knick evidence a com-
mitment to evaluating multiple factors when considering the
continuing vitality of an earlier Court decision.
347
344. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2324 (2016)
(Thomas, J., dissenting) (“I remain fundamentally opposed to the Court’s abortion
jurisprudence.”); Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J., concur-
ring) (“I write separately to reiterate my view that the Court’s abortion jurispru-
dence . . . has no basis in the Constitution.”); Stenberg v. Carhart, 530 U.S. 914, 980
(2000) (Thomas, J., dissenting) (“In 1973, this Court . . . render[ed] unconstitutional
abortion statutes in dozens of States. . . . [T]hat decision was grievously wrong.”
(citing Roe v. Wade, 410 U.S. 113, 119 (1973))). Justice Thomas also joined Justice
Scalia’s opinion in Casey, which expressed a similar sentiment. See Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1002 (1992) (Scalia, J., concurring in
the judgment in part and dissenting in part) (“We should get out of this area,
where we have no right to be, and where we do neither ourselves nor the country
any good by remaining.”).
345. See Ramos, 140 S. Ct. at 1421–22 (Thomas, J., concurring in the judgment)
(asserting that the Court’s consideration of additional factors is inconsistent with
its constitutional duty); Allen v. Cooper, 140 S. Ct. 994, 1008 (2020) (Thomas, J.,
concurring in part and concurring in the judgment) (“If our decision in Florida
Prepaid were demonstrably erroneous, the Court would be obligated to ‘correct
the error, regardless of whether other factors support overruling the precedent.’”
(quoting Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concur-
ring))); Gamble, 139 S. Ct. at 1984 (Thomas, J., concurring) (“When faced with a
demonstrably erroneous precedent, my rule is simple: We should not follow it.”).
346. See supra notes 15–16 and accompanying text (noting that Chief Justice
Roberts did not join in Justice Thomas’s concurrence in Gonzales or Justice Thomas’s
dissent in Hellerstedt).
347. See Citizens United v. FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J., concur-
ring); see also Knick v. Township of Scott, 139 S. Ct. 2162, 2177–78 (2019); Halliburton
Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275–77 (2014). Most recently, the
778 Harvard Journal of Law & Public Policy [Vol. 43
Thus, those who want to earn the Chief Justice’s vote to over-
rule Roe will need to do more than convince him that the Court
got it wrong. They will need to attack Roe successfully on multiple
fronts. And an important bulwark—the Court’s 1992 decision
in Planned Parenthood of Southeastern Pennsylvania v. Casey
348
—
stands in the way.
349
A. The Force of Planned Parenthood v. Casey
During Chief Justice Roberts’s confirmation hearing, Senator
Arlen Specter displayed a chart showing some thirty-eight cases
in which Roe had been addressed and asked then-Judge Roberts
if he might consider Roe to be a “super-duper precedent.”
350
The Chief Justice declined to comment on the moniker and
emphasized that, of the thirty-eight, the only one relevant to
the level of Roe’s precedential force is Casey because the Casey
Court specifically had considered overruling Roe, yet reaf-
firmed it.
351
And in his 2010 Citizens United concurrence, Chief
Justice Roberts indicated that he continued to hold the view
that reaffirmation requires reconsideration and only decisions
Chief Justice expressed this view indirectly by joining Justice Kagan’s majority
opinion in Cooper. See Cooper, 140 S. Ct. at 1003 (“[W]ith th[e] charge of error alone,
[one] cannot overcome stare decisis.”).
348. 505 U.S. 833 (1992).
349. Id. at 833–34.
350. Confirmation Hearing, supra note 3, at 145 (statement of Sen. Arlen Specter).
351. See id. at 145 (statement of Judge John G. Roberts, Jr.) (“The interesting
thing . . . is not simply the opportunity to address [Roe], but when the Court actu-
ally [has] consider[ed] the question [whether to overrule the decision]. And that,
of course, is in the Casey decision where it did apply the principles of stare decisis
and specifically addressed [the question].”). Citing Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of
Obstetricians & Gynecologists, 476 U.S. 747 (1986), the Casey Court stated that Roe
was “expressly affirmed by a majority of six in 1983 and by a majority of five in
1986,” and in both Akron and Thornburgh, the Court stated that it was reaffirming
Roe. Casey, 505 U.S. at 858 (plurality opinion) (citation omitted); Thornburgh, 476
U.S. at 759 (“Again today, we reaffirm the general principles laid down in Roe and
in Akron.”); Akron, 462 U.S. at 420 (“We . . . reaffirm Roe v. Wade.”). Chief Justice
Roberts, however, seems to discredit this characterization because the Court in
neither Akron nor Thornburgh actually considered whether to overrule Roe. Instead,
the Court respected Roe and applied it. And notably, the Court in Gonzales v. Carhart,
550 U.S. 124 (2007), did not even intimate that it was reaffirming Casey, but “as-
sume[d] . . . principles [from Casey] for the purposes of th[e] opinion.” Id. at 146.
No. 3] The Call on the Field 779
reaffirming a precedent are germane to the strength that stare
decisis enjoys with respect to the precedent.
352
Consequently, if called upon to reevaluate Roe, Chief Justice
Roberts almost certainly will embark at Casey. Indeed, the Chief
Justice said as much in his confirmation hearing:
[T]he Casey decision itself, which applied the principles of
stare decisis to Roe v. Wade, is itself a precedent of the Court,
entitled to respect under principles of stare decisis. . . . [Casey]’s
a precedent on whether or not to revisit the Roe v. Wade
precedent. And under principles of stare decisis, that would
be where any judge . . . would begin.
353
The first critical battlefront for the Chief Justice’s vote, then,
will be whether the principles of stare decisis require the Court
to respect Casey’s application of stare decisis to Roe.
In Casey, the Court abandoned Roe’s detailed trimester
framework for evaluating the constitutionality of abortion reg-
ulations,
354
but purported to preserve what it described as Roe’s
“essential holding”—that viability is the critical dividing line
between a woman’s right to choose and a state’s ability to bar
the choice and that “the State has legitimate interests from the
outset of the pregnancy in protecting the health of the woman
and the life of the fetus that may become a child.”
355
Importantly,
though, the Casey Court’s decision was not rooted in the con-
clusion that Roe had been decided correctly, but solely in stare
352. See Citizens United, 558 U.S. at 377 (Roberts, C.J., concurring) (asserting that
previous decisions could not “be understood as a reaffirmation of [Austin]” because
the Court had not previously been asked to overrule the decision); see also Gamble
v. United States, 139 S. Ct. 1960, 1976 (2019) (“When we turn from 19th-century
treatises to 19th-century state cases, Gamble’s argument appears no stronger. The
last time we looked, we found these state cases to be ‘inconclusive.’” (quoting
Bartkus v. Illinois, 359 U.S. 121, 131 (1959))); Randall v. Sorrell, 548 U.S. 230, 244
(2006) (indicating that Buckley “has become settled through iteration and reitera-
tion over a long period”).
353. Confirmation Hearing, supra note 3, at 145 (statement of Judge John G.
Roberts, Jr.).
354. See Casey, 505 U.S. at 873 (plurality opinion) (“We reject the trimester
framework, which we do not consider to be part of the essential holding of Roe.”
(citing Webster v. Reprod. Health Servs., 492 U.S. 490, 518 (1989) (opinion of
Rehnquist, C.J.); id. at 529 (O’Connor, J., concurring in part and concurring in the
judgment))).
355. Id. at 846.
780 Harvard Journal of Law & Public Policy [Vol. 43
decisis.
356
And according to the Court, the principle is extraor-
dinarily powerful as it relates to Roe—in the Court’s words, Roe
enjoys “rare precedential force”—because the ruling has been
deeply polarizing.
357
In support of its decision to uphold Roe, the Casey Court be-
gan with several factors that have appeared in stare decisis rul-
ings handed down during Chief Justice Roberts’s tenure on the
Court: workability, reliance, erosion of precedent, and devel-
opments since the case was decided.
358
All of these factors, the
Court determined, swung in Roe’s favor. First, the Court in Casey
concluded that Roe had not been unworkable, but imposed only
a “simple limitation” that courts are competent to assess.
359
Second, taking a sweeping view of reliance, the Court asserted
that, “for two decades of economic and social developments,
people have organized intimate relationships and made choices
that define their views of themselves and their places in society,
in reliance on the availability of abortion in the event that con-
traception should fail.”
360
Third, the Court contended that Roe
remained consistent with decisions regarding liberty, both in
the context of “intimate relationships, the family, and decisions
about whether or not to beget or bear a child” and in the con-
text of “personal autonomy and bodily integrity.”
361
Moreover,
the Court explained that Roe might even fit within a classifica-
tion all its own, and intervening abortion-related decisions
have not departed from Roe’s fundamental premises.
362
Finally,
according to the Casey Court, although technological advances
had enhanced the safety of abortion and pushed viability earlier,
these developments did not undermine the use of viability as
the key marker in deciding when the state’s interest in protect-
356. See id. at 871 (“We do not need to say whether each of us . . . would have
concluded . . . that [the] weight [of the State’s interest in potential life] is insuffi-
cient to justify a ban on abortions prior to viability . . . . [T]he immediate question
is . . . [Roe’s] precedential force . . . .”).
357. Id. at 867.
358. Id. at 854–55.
359. Id. at 855.
360. Id. at 856.
361. Id. at 857.
362. See id. (“[O]ne could classify Roe as sui generis.”).
No. 3] The Call on the Field 781
ing potential life becomes strong enough to limit a woman’s
ability to choose abortion.
363
Though the Casey Court concluded that all of the stare decisis
factors weighed in Roe’s favor, the Court nevertheless felt com-
pelled to venture further and consider what overruling Roe
would mean for the Court’s legitimacy. According to Casey, the
Court’s legitimacy rests not only on making sound decisions
founded on valid legal principles, but also on the public’s per-
ception that the judiciary is capable of interpreting the nation’s
laws.
364
Overturning Roe in the midst of extreme divisiveness
and under public pressure that is no less intense than it was in
1973, the Court contended, would undermine these founda-
tions intolerably: “[T]o overrule under fire in the absence of the
most compelling reason to reexamine a watershed decision
would subvert the Court’s legitimacy beyond any serious ques-
tion.”
365
With this in mind, Roe—or, more precisely, its “es-
sence”—would stand.
366
One of the principal questions with respect to a new chal-
lenge to Roe is whether the Chief Justice would consider him-
self bound by Casey’s stare decisis rubric, with its broad view of
reliance and its assertions regarding legitimacy. And those op-
posing Roe certainly have significant ammunition to convince
him that he is not so constrained.
Of the cases in which the Court has given significant atten-
tion to stare decisis since Roberts became Chief Justice, Pearson
stands out as one that might guide his thinking about the re-
spect that the Court must afford Casey’s approach to precedent.
In Pearson, with all of the Justices of one accord, the Court sug-
gested that stare decisis is weak in relation to decisions regard-
ing rules that govern the judiciary,
367
and stare decisis itself is a
363. See id. at 860 (discussing changes weakening Roe’s factual premises).
364. See id. at 865.
365. Id. at 867.
366. Id. at 869 (“A decision to overrule Roe’s essential holding under the existing
circumstances would [come] at the cost of both profound and unnecessary damage
to the Court’s legitimacy and to the Nation’s commitment to the rule of law.”).
367. See Pearson v. Callahan, 555 U.S. 223, 233 (2009) (“‘Considerations in favor
of stare decisis are at their acme in cases involving property and contract rights,
where reliance interests are involved; the opposite is true in cases . . . involving
procedural and evidentiary rules’ that do not produce such reliance.” (quoting
Payne v. Tennessee, 501 U.S. 808, 828 (1991))).
782 Harvard Journal of Law & Public Policy [Vol. 43
principle of judicial policy that controls reconsideration of pre-
vious decisions.
368
Therefore, Congress does not have the liberty
to change how the Court applies stare decisis. Because Congress
does not have that power, a weak form should apply to Casey’s
application of the principle.
369
Pearson teaches that reliance, the quality of a precedent’s rea-
soning, and workability are inapposite when evaluating cases
involving rules governing the judiciary and that experience is
the measure of whether to retain or dispose of such decisions.
370
And relevant to the question of experience, the Pearson Court
indicated, are later criticism by Justices and inconsistent appli-
cation of the relevant rule.
371
Although the application of stare decisis in Casey drew criticism
from a dissenting Chief Justice Rehnquist,
372
the Court’s treat-
ment of the principle in Casey has elicited virtually no studied
attention from individual members of the Court since then.
373
368. See id.; see also Citizens United v. FEC, 558 U.S. 310, 378 (2010) (Roberts, C.J.,
concurring) (“Stare decisis is . . . a ‘principle of policy.’” (quoting Helvering v.
Hallock, 309 U.S. 106, 119 (1940))).
369. See Pearson, 555 U.S. at 233–34 (“[T]he Saucier rule is judge made and impli-
cates an important matter involving internal Judicial Branch operations. Any
change should come from this Court, not Congress.”).
370. See id. at 233–34.
371. See id. at 235 (“Where a decision has ‘been questioned by Members of the
Court in later decisions and [has] defied consistent application by the lower
courts,’ these factors weigh in favor of reconsideration.” (alteration in original)
(quoting Payne, 501 U.S. at 829–30)).
372. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 953–66 (1992)
(Rehnquist, C.J., concurring in the judgment in part and dissenting in part).
373. Justice O’Connor’s 1995 opinion in Adarand Constructors, Inc. v. Pena, 515
U.S. 200 (1995), distinguished the Court’s application of stare decisis in Casey from
the way she believed it should apply to the 1990 precedent that the Court over-
ruled in Adarand, but only Justice Kennedy joined in Justice O’Connor’s opinion.
See id. at 233–34 (opinion of O’Connor, J.). Justice Stevens in Hubbard v. United
States, 514 U.S. 695 (1995), a decision of the same vintage, cites Casey as secondary
authority for certain propositions associated with stare decisis; like Justice
O’Connor’s decision in Adarand, however, Justice Stevens’s opinion in Hubbard
did not command majority support. See id. at 711–15 (1995) (opinion of Stevens,
J.). And, since Casey was decided, references to Casey’s treatment of stare decisis
have appeared in a smattering of concurrences and dissents, but without any sig-
nificant examination. See, e.g., Gamble v. United States, 139 S. Ct. 1960, 1981, 1988–
89 (2019) (Thomas, J., concurring); Citizens United, 558 U.S. at 408–09 (Stevens, J.,
concurring in part and dissenting in part); Leegin Creative Leather Prods., Inc. v.
PSKS, Inc., 551 U.S. 877, 918 (2007) (Breyer, J., dissenting); see FEC v. Wis. Right to
No. 3] The Call on the Field 783
The 2003 decision in Lawrence v. Texas
374
might be the exception.
In Lawrence, the Court struck down a Texas anti-sodomy law,
overruling Bowers v. Hardwick
375
and provoking Justice Scalia.
The majority, Justice Scalia contended, had employed stare de-
cisis with respect to Bowers in a manner inconsistent with Ca-
sey.
376
According to Justice Scalia, absent from the Lawrence
Court’s decision was any consideration of the workability of
Bowers, and unlike in Casey, the Lawrence Court cited divisive-
ness as a reason for overruling precedent, rather than uphold-
ing it.
377
True to form, Justice Scalia did not mince words: “To
tell the truth, it . . . should surprise no one[] that the Court has
chosen today to revise the standards of stare decisis set forth in
Casey. It has thereby exposed Casey’s extraordinary deference to
precedent for the result-oriented expedient that it is.”
378
Moreover, again perhaps with Lawrence’s being the excep-
tion, a majority of the Court has not once come close to using
Casey as a model for a stare decisis inquiry.
379
The principal
opinion in Ramos, the Court’s most recent foray into stare deci-
sis, does not mention Casey at all,
380
and Justice Kavanaugh’s
concurrence in Ramos includes Casey among a long list of deci-
sions overruling precedent.
381
Perhaps most significant, though,
is the absence of any reference to Casey in the majority opinion
Life, Inc., 551 U.S. 449, 535 (2007) (Souter, J., dissenting); Gonzales v. Carhart, 550
U.S. 124, 190–91 (2007) (Ginsburg, J., dissenting).
374. 539 U.S. 558 (2003).
375. 478 U.S. 186 (1986); Lawrence, 539 U.S. at 578.
376. Lawrence, 539 U.S. at 587 (Scalia, J., dissenting).
377. Id.
378. Id. at 592.
379. See supra note 373 (discussing the sparse attention paid to Casey’s analysis
of stare decisis). In Agostini v. Felton, 521 U.S. 203 (1997), the majority cited Casey
in finding that principles of stare decisis did not require it to reaffirm a 1985 deci-
sion and rejected the idea that overruling the case would undermine the Court’s
legitimacy, finding that it “do[es] no violence to the doctrine of stare decisis when
[the Court] recognize[s] bona fide changes in . . . decisional law.” Id. at 235–39.
380. See Ramos v. Louisiana, 140 S. Ct. 1390, 1404–08 (2020).
381. See id. at 1411–12 (Kavanaugh, J., concurring in part). Justice Kavanaugh
observed that the Casey Court “rejected Roe’s trimester framework[] and . . . ex-
pressly overruled two other important abortion precedents.” Id. at 1412 n.1; see
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992) (plurality opin-
ion) (overruling in part Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416
(1983), and Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S.
747 (1986)).
784 Harvard Journal of Law & Public Policy [Vol. 43
in Obergefell v. Hodges,
382
the Court’s watershed decision regard-
ing same sex marriage. In Obergefell, the Court cited Lawrence
and overruled the 1972 Baker v. Nelson
383
decision with nary a
mention of stare decisis.
384
In addition, Ramos and other recent
stare decisis decisions have devoted particular attention to the
quality of a precedent’s reasoning, suggesting that Casey’s
analysis is impoverished by today’s standards.
385
Thus, those
who oppose Roe might try to convince the Chief Justice that
Casey has become a “doctrinal dinosaur,”
386
“an outlier” among
the Court’s cases about stare decisis,
387
and completely out of
step with the Court’s application of stare decisis since 1992.
Roe’s proponents, one the other hand, might reply that Pearson
dealt with extensive lower-court experience in applying the
Saucier procedure
388
and that the Court has not applied Casey’s
approach to stare decisis because it has not had to decide
whether to curtail individual constitutional rights (rather than
expand them as it did in Lawrence and Obergefell). Indeed, in
discussing reliance interests in Lawrence, the Court emphasized
that, “[i]n Casey [it had] noted that when a court is asked to
overrule a precedent recognizing a constitutional liberty interest,
individual or societal reliance on the existence of that liberty
cautions with particular strength against reversing course.”
389
Finally, although less compelling, those seeking to preserve Roe
through Casey’s application of stare decisis can point to Justice
382. 135 S. Ct. 2584 (2015).
383. 409 U.S. 810 (1972).
384. Obergefell, 135 S. Ct. at 2605–06.
385. See Ramos, 140 S. Ct. at 1405; Knick v. Township of Scott, 139 S. Ct. 2162,
2177–78 (2019); Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019); Janus v.
AFSCME, 138 S. Ct. 2448, 2478–79 (2018).
386. Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2411 (2015).
387. Janus, 138 S. Ct. at 2482.
388. See Pearson v. Callahan, 555 U.S. 223, 235 (2009) (indicating that the lack of
“consistent application by the lower courts . . . weigh[s] in favor” of reconsidering
a precedent involving a judiciary rule (quoting Payne v. Tennessee, 501 U.S. 808,
829–30 (1991))).
389. Lawrence v. Texas, 539 U.S. 558, 577 (2003) (emphasis added) (citing
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855–56 (1992) (plurality
opinion)).
No. 3] The Call on the Field 785
Thomas’s assertion in a 2009 concurrence that Casey defines
“the prevailing approach to stare decisis.”
390
But the Chief Justice’s characterization of stare decisis in
Citizens United is at odds with Casey: “Stare decisis is a doctrine
of preservation, not transformation.”
391
And the view Chief Justice
Roberts expressed in Citizens United is reminiscent of what a
dissenting Chief Justice Rehnquist said in Casey:
Stare decisis is defined in Black’s Law Dictionary as meaning
“to abide by, or adhere to, decided cases.” Whatever the
“central holding” of Roe that is left after the joint opinion fin-
ishes dissecting it is surely not the result of that principle.
While purporting to adhere to precedent, the joint opinion
instead revises it. Roe continues to exist, but only in the way
a storefront on a western movie set exists: a mere facade to
give the illusion of reality.
392
Indeed, even though the Court in Casey upheld the right of a
woman to choose abortion before fetal viability, it transformed
Roe’s trimester framework into an undue burden test.
393
More-
over, one sees in Casey a subtle but significant shift in the iden-
tified constitutional foundation for the right to choose, from an
emphasis on privacy rights
394
to the declaration that “[t]he con-
trolling word . . . is ‘liberty,’”
395
“the heart of [which] is the
right to define one’s own concept of existence, of meaning, of
390. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 534 (2009) (Thomas, J.,
concurring).
391. Citizens United v. FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J., concurring);
see also Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019) (“The fact that the
justification for the state-litigation requirement continues to evolve is another
factor undermining the force of stare decisis.” (citing Janus, 138 S. Ct. at 2472 (“[W]e
have previously taken a dim view of similar attempts to recast problematic First
Amendment decisions.”))).
392. See Casey, 505 U.S. at 954 (Rehnquist, C.J., dissenting) (citation omitted).
393. Id. at 876 (plurality opinion) (“The trimester framework . . . does not fulfill
Roe’s own promise that the State has an interest in protecting fetal life or potential
life. . . . In our view, the undue burden standard is the appropriate means of rec-
onciling the State’s interest with the woman’s constitutionally protected liberty.”).
394. See Roe v. Wade, 410 U.S. 113, 153 (1973) (“Th[e] right of privacy, whether
it be founded in the Fourteenth Amendment’s concept of personal liberty . . . , as
we feel it is, or . . . in the Ninth Amendment’s reservation of rights to the people,
is broad enough to encompass a woman’s decision whether or not to terminate
her pregnancy.”).
395. Casey, 505 U.S. at 846 (plurality opinion).
786 Harvard Journal of Law & Public Policy [Vol. 43
the universe, and of the mystery of human life.”
396
In addition,
the Casey Court cited “personal dignity and autonomy,” words
that appear nowhere in Roe, as “central to the liberty protected
by the Fourteenth Amendment.”
397
Finally, gone is the primacy
of a woman’s physician in making the abortion decision—
“[f]or the stage prior to approximately the end of the first tri-
mester, the abortion decision and its effectuation must be left to
the medical judgment of the pregnant woman’s attending phy-
sician”
398
—and in the physician’s place is the woman as princi-
pal decision maker—“a State may not prohibit any woman
from making the ultimate decision to terminate her pregnancy
before viability.”
399
With these differences, Roe’s challengers
might succeed in persuading the Chief Justice that the Casey
Court’s application of stare decisis was not stare decisis at all
and therefore is not entitled to respect.
B. Placing Roe on the Stare Decisis Continuum
Although Chief Justice Roberts reliably has favored uphold-
ing earlier rulings when a strong version of stare decisis applies
(for example, cases involving statutory interpretation and con-
stitutional arenas where Congress exercises primary authority),
he otherwise has exhibited little hesitation in voting to overrule
Court precedent.
400
Decisions from 2018 and 2019 present in
stark relief the contextual distinctions the Chief Justice has
drawn. In Wayfair, he advocated adherence to a decision he
admitted was wrongly decided because the decision involved
interstate commerce, an area in which the Constitution grants
Congress broad regulatory latitude.
401
In addition, the Chief
Justice cast the deciding vote in Kisor to retain Auer and Seminole
396. Id. at 851.
397. Id.
398. Roe, 410 U.S. at 164; see also id. at 163 (“This means . . . that, for the period of
pregnancy prior to this ‘compelling’ point, the attending physician, in consulta-
tion with his patient, is free to determine . . . that . . . the patient’s pregnancy
should be terminated.”).
399. Casey, 505 U.S. at 879 (plurality opinion).
400. See supra Part I.
401. See South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2101–02 (2018) (Roberts,
C.J., dissenting) (“We have applied this heightened form of stare decisis in the
dormant Commerce Clause context.”).
No. 3] The Call on the Field 787
Rock
402
—administrative law decisions that Congress perhaps
could address by statute
403
—not because he believed that those
decisions were decided correctly, but on the basis of stare deci-
sis alone.
404
In contrast, his opinion in Knick rejected the idea
that the Court should leave Williamson County alone because
Congress could amend a statute to fix a practical problem the
decision had wrought.
405
That, the Chief Justice explained, was
not enough because Congress could not remedy the Court’s
erroneous interpretation of the Constitution.
406
Moreover, by joining Justice Alito’s dissent in Kimble, Chief
Justice Roberts rejected the majority’s suggestion that Brulotte
enjoyed a “superpowered form of stare decisis” because it in-
volved statutory interpretation and could affect contractual re-
lationships.
407
As Justice Alito explained: “[W]e do not give super-
duper protection to decisions that do not actually interpret a
statute. When a precedent is based on a judge-made rule . . . ,
we cannot ‘properly place on the shoulders of Congress’ the
entire burden of correcting ‘the Court’s own error.’”
408
How
much more might one expect the Chief Justice to reject the idea
of “super-duper precedent” when referring to Roe. Legislative
action cannot eliminate the putative right to abortion, which is
mentioned nowhere in the Constitution, but ostensibly resides
in a right to privacy emanating from the penumbra of the Bill
of Rights or in some amorphous right to privacy, dignity, or
autonomy hidden within the term “liberty” under the Fourteenth
Amendment’s Due Process Clause.
409
402. Kisor v. Wilkie, 139 S. Ct. 2400, 2424 (2019) (Roberts, C.J., concurring in part).
403. Id. at 2412 (plurality opinion). But see id. at 2444 (Gorsuch, J., concurring in
the judgment) (“[I]t [is not] entirely clear that Congress could overturn the Auer
doctrine legislatively.”).
404. See id. at 2424 (Roberts, C.J., concurring).
405. See Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019) (addressing
dissent’s assertion that Williamson County should enjoy an “enhanced” form of
stare decisis).
406. See id. (indicating that Congress did not have the power to fix Williamson
County’s disparate treatment of takings claims and other constitutional claims).
407. Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2418 (2015) (Alito, J., dis-
senting) (quoting id. at 2410 (majority opinion)).
408. Id. (quoting Girouard v. United States, 328 U.S. 61, 69–70 (1946)).
409. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (finding
abortion right within Fourteenth Amendment’s concept of liberty); Roe v. Wade,
788 Harvard Journal of Law & Public Policy [Vol. 43
Chief Justice Roberts, in fact, underscored in his confirmation
hearing the risk associated with interpreting the Due Process
Clause: “[I]t is an area in which the danger of judges going be-
yond their appropriately limited authority is presented because
of the nature of the sources of authority. You’re not construing
the text narrowly.”
410
If the Chief Justice was unwilling to ac-
cord stare decisis the usual force in Kimble, the risk he identi-
fied with respect to interpreting the Due Process Clause would
seem to push him even more toward applying a weaker from
of stare decisis to Roe.
This is not to say that Chief Justice Roberts would apply the
weakest form of stare decisis to Roe. The Janus Court indicated
that First Amendment precedents may enjoy the least re-
spect,
411
and the Court in Alleyne v. United States
412
stated that
“[t]he force of stare decisis is at its nadir in cases concerning
procedural rules that implicate fundamental constitutional pro-
tections.”
413
Furthermore, unlike Janus, a case in which the
Court was recognizing greater free speech rights,
414
overruling
Roe would decommission a very personal individual right. And
although the Court in Hyatt seemed to do so rather easily,
415
it
is hard to equate the right to sue one state in the courts of an-
other with one of the most controversial rights that the Court
has recognized in recent history.
The key for pro-choice advocates, then, is to convince Chief
Justice Roberts that he must adhere to Casey’s view that stare
decisis enjoys particular force with respect to decisions ad-
dressing divisive constitutional issues—that Roe really is a spe-
cial case, one to which the customarily weak form of stare deci-
sis with respect to constitutional precedents does not apply. He
was not on the Court in Casey, however, and none of the opin-
ions he has authored or joined during his tenure suggest that
410 U.S. 113, 152–53 (1973) (discussing sources of constitutional right to privacy
and contending that right to choose abortion is included in this right).
410. Confirmation Hearing, supra note 3, at 259–60 (statement of Judge John G.
Roberts, Jr.).
411. Janus v. AFSCME, 138 S. Ct. 2448, 2478 (2018).
412. 570 U.S. 99 (2013).
413. Id. at 116 n.5.
414. Janus, 138 S. Ct. at 2478.
415. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019).
No. 3] The Call on the Field 789
he would gravitate toward this view. Thus, pushing the Chief
Justice toward a stronger form of stare decisis with respect to
Roe seems a tall order.
C. Applying Stare Decisis Factors to Roe
Persuading Chief Justice Roberts about where Roe falls on the
stare decisis continuum is not insignificant given his voting
record. In contexts where the Chief Justice has determined that
stare decisis enjoys particular strength, he has voted to uphold
precedent every single time.
416
When the Chief Justice has con-
cluded that the principle is weak, on the other hand, he has fa-
vored disposing of precedent ten of fourteen times.
417
And
Gamble—one of the decisions in which he voted to uphold prior
rulings—probably should not count among the fourteen given
that the Court in that case emphasized that the challenger had
not offered sufficient evidence of error.
418
After all, as Justice
Kagan pointed out in Kimble, stare decisis only is important when
the Court determines that a previous decision was wrong.
419
The Chief Justice’s vote in Ramos to retain Apodaca is the first
significant sign in over ten years that he is open to upholding
precedent when stare decisis is weak, and thus Roe’s propo-
nents would be wise to mine Justice Alito’s dissent (which the
Chief Justice joined) for clues about how to persuade the Chief
Justice to leave Roe alone.
420
Moreover, recent history indicates
416. See supra Part I.A.
417. See id. Not counted among these numbers is the Chief Justice’s recent vote
in Cooper. The Cooper Court declined to evaluate whether to overrule Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999),
because the plaintiffs asserted nothing more than that the earlier decision was
incorrect. See Allen v. Cooper, 140 S. Ct. 994, 1003 (2020). Thus, one cannot glean
how the Chief Justice might have voted had the plaintiffs asserted more, giving
the Court reason to evaluate the effect of stare decisis.
Also not counted is the Chief Justice’s vote in Alleyne, a decision in which the
Court overruled its 2002 Harris ruling. Although the Chief Justice dissented in
Alleyne, he did not challenge the manner in which the majority evaluated the de-
mands of stare decisis. See supra note 230.
418. See supra notes 308–313 and accompanying text.
419. Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (“[S]tare decisis
has consequence only to the extent it sustains incorrect decisions; correct judg-
ments have no need for that principle to prop them up.”).
420. See Ramos v. Louisiana, 140 S. Ct. 1390, 1431–40 (2020) (Alito, J., dissenting)
(discussing stare decisis).
790 Harvard Journal of Law & Public Policy [Vol. 43
that, regardless of where the Chief Justice situates Roe on the
stare decisis continuum, he would give studied attention to
various factors from the Court’s stare decisis jurisprudence in
deciding how to vote in a challenge to Roe.
421
With the Court’s
uneven consideration of various factors,
422
however, which fac-
tors Chief Justice Roberts would consider relevant is an open
question. If he determines that Casey sets the stare decisis
standard, one would expect him to look to the factors the Casey
Court addressed—workability, reliance, and developments
(legal and factual) since the decision.
423
But if the Chief Justice
does not view Casey as a constraint, he might dispense with one
or more of the Casey factors and add one or more other factors
which the Casey Court neglected.
In the Chief Justice’s confirmation hearing, he identified
workability, doctrinal developments, and reliance (which he
also referred to as “settled expectations”) as the principal con-
siderations when deciding whether to overrule an erroneous
precedent.
424
As noted above, these factors featured in Casey.
Not surprisingly, they also have been present in the many cases
examining the effect of stare decisis while the Chief Justice has
been on the Court.
425
Opinions that he has written and those he
has joined since becoming Chief Justice have addressed with
some frequency other factors as well, including the age of the
421. See Cooper, 140 S. Ct. at 1003; Knick v. Township of Scott, 139 S. Ct. 2162,
2177–78 (2019); Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266
(2014).
422. See, e.g., Janus v. AFSCME, 138 S. Ct. 2448, 2478–79 (2018) (identifying five
relevant factors); see also Knick, 139 S. Ct. at 2178 (reciting only four of the five
factors identified in Janus); Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019).
423. See supra notes 354–366 and accompanying text (describing Casey’s applica-
tion of stare decisis).
424. See, e.g., Confirmation Hearing, supra note 3, at 142 (statement of Judge John
G. Roberts, Jr.); see also id. at 223 (indicating that reliance “is often expressed in the
Court’s opinions [as] settled expectations”).
425. See, e.g., Ramos, 140 S. Ct. at 1432–36 (Alito, J., dissenting); Knick, 139 S. Ct.
at 2178; Janus, 138 S. Ct. at 2478; Johnson v. United States, 135 S. Ct. 2551, 2562–63
(2015); Citizens United v. FEC, 558 U.S. 310, 362–63 (2010); Montejo v. Louisiana,
556 U.S. 778, 792–93 (2009); Arizona v. Gant, 556 U.S. 332, 358–63 (2009) (Alito, J.,
dissenting); Pearson v. Callahan, 555 U.S. 223, 233 (2009). Janus identified as separate
factors consistency with related decisions and doctrinal developments. Janus, 138
S. Ct. at 2478–79. But the Janus Court did not evaluate them separately, instead ad-
dressing them together in an evaluation of factual legal developments. Id. at 2482–84.
No. 3] The Call on the Field 791
precedent
426
and, with particular prominence of late, the quality
of the precedent’s reasoning.
427
1. Roe’s Age
That Roe is pushing fifty is unlikely to figure much in the
Chief Justice’s stare decisis evaluation. Admittedly, he joined
the 2019 Kisor majority in declining to overrule the Court’s 1945
decision in Seminole Rock and disagreed with the 2018 majority
in Wayfair when it did away with the Court’s 1967 decision in
Bellas Hess; the Chief Justice situated both Seminole Rock and
Bellas Hess on the strong side of the stare decisis continuum.
428
And although he voted in 2020 to retain a 1972 constitutional
precedent in Ramos, in the 2019 Hyatt, 2018 Janus, and 2015
Kimble decisions, all of which involved precedents the Chief
placed on the weak side, he favored overruling decisions da-
ting back to 1979, 1977, and 1964.
429
Moreover, the Chief Justice
sided with the majority in Leegin, a 2007 decision overruling a
1911 decision in the antitrust realm, where stare decisis also is
weak.
430
Thus, he does not seem compelled to keep an errone-
ous precedent merely because it is old.
If overruling a precedent threatens to upend a host of later
decisions that have relied on the precedent—a risk that increases
with age—the calculus is different. The Chief Justice in Ramos
joined a dissenting Justice Alito, who observed that Louisiana
and Oregon “ha[d] conducted thousands and thousands of tri-
als” assuming Apodoca’s validity and who warned that dispos-
ing of Apodaca could unleash a “tsunami of litigation.”
431
Simi-
larly, in the Kisor Court’s discussion of stare decisis, which the
Chief Justice endorsed, the Court observed, “This Court alone
426. E.g., Gamble v. United States, 139 S. Ct. 1960, 1969 (2019); Citizens United,
558 U.S. at 362–63; Montejo, 556 U.S. at 792–93; Pearson, 555 U.S. at 233; CBOCS
West, Inc. v. Humphries, 553 U.S. 442, 452–53 (2008).
427. E.g., Ramos, 140 S. Ct. at 1432–35 (Alito, J., dissenting); Knick, 139 S. Ct. at
2177–78; Hyatt, 139 S. Ct. at 1499; Janus, 138 S. Ct. at 2478–79; Citizens United, 558
U.S. at 362–63; Montejo, 556 U.S. at 792–93; Gant, 556 U.S. at 361–63 (Alito, J.,
dissenting).
428. See supra notes 109–135 and accompanying text.
429. See supra notes 231–254, 274–299, 300–307, 327–343 and accompanying text.
430. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899, 907
(2007).
431. Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting).
792 Harvard Journal of Law & Public Policy [Vol. 43
has applied Auer or Seminole Rock in dozens of cases, and lower
courts have done so thousands of times. . . . It is the rare over-
ruling that introduces so much instability into so many areas of
law, all in one blow.”
432
Moreover, with the Chief Justice on
board, the Gamble Court stressed that the evidence of error
needed to be very strong to “overcome numerous ‘major deci-
sions of th[e] Court’ spanning 170 years.”
433
In addition, the
2008 CBOCS majority (of which the Chief Justice was a part)
cited age as a reason not to depart from Sullivan (decided four
years before Roe) and emphasized that doing otherwise would
destabilize “many Court precedents.”
434
Finally, back in 2006,
the Chief Justice joined Justice Breyer who asserted in Randall
that stare decisis should buoy the Court’s 1976 Buckley decision
because the underlying principle “ha[d] become settled through
iteration and reiteration over a long period of time.”
435
Taking Roe and Casey at their word, the abortion right Roe
recognized is one of a kind,
436
and therefore, overruling Roe
should not have similar ripple effects. In considering whether
there were doctrinal developments that undermined Roe, the
Casey Court emphasized that any error in Roe goes to the
strength of the state’s interest in potential life and that perpetu-
ating that error in future decisions was unlikely to have far-
reaching consequences.
437
If the Casey Court was correct that
Roe is so limited, then—although Roe’s demise no doubt would
create a cultural tidal wave—it would not have the wide-
ranging effects of the kind that seem to have concerned the
Chief Justice in Ramos, Kisor, Gamble, and Randall. In fact, be-
cause overruling Roe would staunch a stream of litigation that
has continued unabated since 1973, departing from stare deci-
432. Kisor v. Wilkie, 139 S. Ct. 2400, 2422 (2019).
433. Gamble v. United States, 139 S. Ct. 1960, 1969 (2019) (quoting Welch v. Tex.
Dep’t. of Highways & Pub. Transp., 483 U.S. 468, 479 (1987)).
434. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 451–52 (2008).
435. Randall v. Sorrell, 548 U.S. 230, 244 (2006) (plurality opinion).
436. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 852 (1992) (plurality
opinion) (“Abortion is a unique act. It is an act fraught with consequences . . . ,
depending on one’s beliefs, for the life or potential life that is aborted.”); id. at 857
(“[O]ne could classify Roe as sui generis.”); Roe v. Wade, 410 U.S. 113, 159 (1973)
(“The situation therefore is inherently different from marital intimacy, or bedroom
possession of obscene material, or marriage, or procreation, or education . . . .”).
437. See Casey, 505 U.S. at 858–59 (discussing the effect of not overruling Roe).
No. 3] The Call on the Field 793
sis would have the very opposite effect that the Kisor majority
feared and that Justice Alito’s Ramos dissent forecasted.
2. Quality of Roe’s Reasoning
The Casey Court did not evaluate Roe’s reasoning when it de-
cided to affirm Roe’s essential holding,
438
and in Kisor, Chief
Justice Roberts joined the portion of the opinion of the Court in
which Justice Kagan stated that whether an earlier decision
was “right and well-reasoned . . . is not the test for overturning
[it].”
439
Numerous opinions during the Chief Justice’s tenure,
though, indicate that he believes that a precedent’s reasoning is
an important consideration, at least in cases when stare decisis
is weak.
440
For the Chief Justice, it seems to be a matter of de-
gree. As he explained in Knick: “Williamson County was not just
wrong. Its reasoning was exceptionally ill founded and con-
flicted with much of [the Court’s] takings jurisprudence.”
441
Based on what the Chief Justice himself has written and the
opinions he has joined, a number of details are relevant in
measuring the extent to which a precedent’s reasoning has
gone off course. Among the pertinent considerations are
whether the decision relies on dicta
442
or decisions that are not
germane,
443
ignores applicable precedent,
444
conflicts with the
pertinent jurisprudential corpus,
445
has been subject to criticism
by Justices and scholars,
446
fails to account for contextual dis-
438. See id. at 869 (“A decision to overrule Roe’s essential holding under the ex-
isting circumstances would address error, if error there was . . . .” (emphasis added));
id. at 982 (Scalia, J., concurring in the judgment in part and dissenting in part).
439. Kisor v. Wilkie, 139 S. Ct. 2400, 2423 (2019).
440. See Ramos v. Louisiana, 140 S. Ct. 1390, 1432–36 (2020) (Alito, J., dissent-
ing); Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019); Franchise Tax Bd. v.
Hyatt, 139 S. Ct. 1485, 1499 (2019); Janus v. AFSCME, 138 S. Ct. 2448, 2479 (2018);
Citizens United v. FEC, 558 U.S. 310, 362–63 (2010); Montejo v. Louisiana, 556 U.S.
778, 792–93 (2009); Arizona v. Gant, 556 U.S. 332, 358 (2009) (Alito, J., dissenting);
Pearson v. Callahan, 555 U.S. 223, 234 (2009).
441. Knick, 139 S. Ct. at 2178.
442. See id. at 2178.
443. See Janus, 138 S. Ct. at 2479.
444. See Knick, 139 S. Ct. at 2178; Citizens United, 558 U.S. at 348 (indicating that
Austin v. Michigan State Chamber of Commerce “bypass[ed]” two important precedents).
445. See Knick, 139 S. Ct. at 2178; Janus, 138 S. Ct. at 2479–80.
446. Knick, 139 S. Ct. at 2178.
794 Harvard Journal of Law & Public Policy [Vol. 43
tinctions,
447
has had changing justifications over time,
448
lacked
a sufficient judicial record,
449
or departed from the understanding
of relevant principles at the Founding.
450
Importantly, though,
Gamble teaches that, for the Court to overrule a precedent, the
evidence must make clear that the reasoning was errant.
451
Un-
like in Gamble, however, where repeating old arguments met
disfavor, it would seem that any arguments made in Casey
about how Roe went off course still are fair game in a challenge
to Roe, given that the Casey Court did not consider and reject
any arguments regarding Roe’s premises, but avoided them
entirely.
452
An exhaustive study of all of the considerations identified
above would stretch this Article beyond its principal aim, but
in light of what the Chief Justice himself stated in Knick and
what Justice Alito said in the Ramos dissent the Chief Justice
joined, a few points warrant specific mention. First, regarding
the weakness of Roe’s reasoning, the Chief Justice might find it
telling that the Court in Casey did not even consider Roe’s rea-
soning,
453
but affirmed Roe’s “essential” holding based on the
Casey Court’s explanation of liberty and on other factors under-
lying stare decisis.
454
Of course, one rightly might point out
that, similar to the Casey Court, Justice Alito declined to say
how he would have voted in Apodaca if he were on the Court at
the time,
455
but it seems more notable that Justice Alito departed
447. Janus, 138 S. Ct. at 2480.
448. Knick, 139 S. Ct. at 2178; Citizens United, 558 U.S. at 363.
449. Johnson v. United States, 135 S. Ct. 2551, 2562 (2015).
450. Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1499 (2019).
451. Gamble v. United States, 139 S. Ct. 1960, 1969 (2019).
452. See id. at 1974, 1976 (discussing arguments previously raised and noting the
absence of any changes making the arguments more convincing); see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 869 (1992) (plurality opinion) (“A
decision to overrule Roe’s essential holding under the existing circumstances
would address error, if error there was . . . .” (emphasis added)); id. at 982 (Scalia, J.,
dissenting).
453. See Casey, 505 U.S. at 854–69 (plurality opinion) (omitting an evaluation of
Roe’s logic).
454. See id. at 853 (“[T]he reservations any of us may have in reaffirming the
central holding of Roe are outweighed by the explication of individual liberty we
have given combined with the force of stare decisis.”).
455. See Ramos v. Louisiana, 140 S. Ct. 1390, 1434 (2020) (Alito, J., dissenting) (“I
cannot say that I would have agreed either with Justice White’s analysis or his
bottom line in Apodaca if I had sat on the Court at that time . . . .”); cf. Casey, 505
No. 3] The Call on the Field 795
from the Casey Court when he engaged in a careful and detailed
evaluation of the reasoning that led to the Apodaca Court’s
judgment.
456
Whatever one might say about the Apodaca Court’s
bottom line, according to Justice Alito (and the Chief Justice with
him), the errors the Ramos majority identified did not make the
Apodaca decision “gravely mistaken”
457
or, as the Chief Justice
described the precedent in Knick, “exceptionally ill founded.”
458
Which leads to the second point. Unlike what the Chief Justice
noted in Knick with respect to Williamson County, during the
“[n]early . . . half century . . . since [the Court decided Apodaca],
no Justice ha[d] even hinted that Apodaca should be reconsid-
ered.”
459
The same cannot be said of Roe’s almost fifty-year his-
tory. Before Casey, Justice O’Connor repeatedly criticized Roe.
460
For example, in Akron v. Akron Center for Reproductive Health,
Inc.,
461
she asserted that Roe’s adoption of the trimester frame-
work and viability as a critical marker therein “violates the
fundamental aspiration of judicial decision making through the
application of neutral principles ‘sufficiently absolute to give
them roots throughout the community and continuity over
significant periods of time . . . .’”
462
Furthermore in Akron, she
voiced her opposition to the Roe Court’s conclusion that the
U.S. at 871 (plurality opinion) (“We do not need to say whether each of
us, . . . when the valuation of the state interest came before [the Court] as an origi-
nal matter, would have concluded . . . that its weight is insufficient to justify a ban
on abortions prior to viability even when it is subject to certain exceptions.”).
456. See Ramos, 140 S. Ct. at 1432–36 (Alito, J., dissenting).
457. Id. at 1405 (majority opinion).
458. Knick, 139 S. Ct. at 2178; see Ramos, 140 S. Ct. at 1433 (Alito, J., dissenting)
(describing errors the Ramos majority identified as “overblown”).
459. Ramos, 140 S. Ct. at 1425 (Alito, J., dissenting).
460. See Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747,
828–29 (1986) (O’Connor, J., dissenting) (asserting that the state has a compelling
interest in protecting potential life that exists throughout pregnancy and that Roe’s
trimester framework is “outmoded”); Planned Parenthood Ass’n of Kan. City,
Mo. v. Ashcroft, 462 U.S. 476, 504 (1983) (O’Connor, J., concurring in part in the
judgment and dissenting in part) (“[T]he State possesses a compelling interest in
protecting and preserving fetal life, [and] I believe this state interest is extant
throughout pregnancy.”); City of Akron v. Akron Ctr. for Reprod. Health, Inc.,
462 U.S. 416, 453–66 (1983) (O’Connor, J., dissenting) (criticizing Roe’s trimester
framework and evaluation of the state’s interests).
461. 462 U.S. 416.
462. Id. at 458 (O’Connor, J., dissenting) (quoting A
RCHIBALD COX, THE ROLE OF
THE
SUPREME COURT IN AMERICAN GOVERNMENT 114 (1976)).
796 Harvard Journal of Law & Public Policy [Vol. 43
state’s interest in protecting potential life is not compelling
throughout pregnancy.
463
Justice Kennedy seems to have held similar views. By joining
Chief Justice Rehnquist’s 1989 opinion in Webster v. Reproductive
Health Services,
464
it appears that Justice Kennedy both con-
curred with Justice O’Connor about the nature of the state’s
interest in potential life
465
and fundamentally disapproved of
Roe’s declarations regarding trimesters and viability: “The key
elements of the Roe framework—trimesters and viability—are
not found in the text of the Constitution or in any place else
one would expect to find a constitutional principle.”
466
Other
Justices—Chief Justice Rehnquist and Justices Scalia, Thomas,
and Byron White, in particular—have repeatedly and more vo-
ciferously aired their objections to Roe.
467
Even Justice Ginsburg
463. See id. at 461 (“The choice of viability as the point at which the state interest
in potential life becomes compelling is no less arbitrary than choosing any point
before viability or any point afterward. Accordingly, I believe that the State’s in-
terest in protecting potential human life exists throughout the pregnancy.”).
464. 492 U.S. 490 (1989).
465. See id. at 519 (opinion of Rehnquist, C.J.) (criticizing Roe).
466. Id. at 518.
467. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2324 (2016)
(Thomas, J., dissenting) (“I remain fundamentally opposed to the Court’s abortion
jurisprudence.”); Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Thomas, J., concur-
ring) (“I write separately to reiterate my view that the Court’s abortion jurispru-
dence, including Casey and Roe v. Wade, has no basis in the Constitution.” (citation
omitted)); Stenberg v. Carhart, 530 U.S. 914, 956 (2000) (Scalia, J., dissenting) (“If
only for the sake of its own preservation, the Court should return this matter to
the people—where the Constitution, by its silence on the subject, left it—and let
them decide, State by State, whether this practice should be allowed.”); id. at 980
(Thomas, J., dissenting) (“In 1973, this Court . . . render[ed] unconstitutional abor-
tion statutes in dozens of States. . . . [T]hat decision was grievously wrong.” (cit-
ing Roe v. Wade, 410 U.S. 113 (1973))); Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 944 (1992) (Rehnquist, C.J., concurring in the judgment in part and
dissenting in part) (“We believe that Roe was wrongly decided, and that it can and
should be overruled . . . .”); id. at 980 (Scalia, J., concurring in the judgment in part
and dissenting in part) (“The issue is whether [the power of a woman to abort her
unborn child] is a liberty protected by the Constitution of the United States. I am
sure it is not.”); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 520–21 (1990)
(Scalia, J., concurring) (“I continue to believe . . . that the Constitution contains no
right to abortion. . . . The Court should end its disruptive intrusion into this field
as soon as possible.”); Webster, 492 U.S. at 532 (Scalia, J., concurring in part and
concurring in the judgment) (“As to Part II-D [of Chief Justice Rehnquist’s opin-
ion], I [hold the] view that it effectively would overrule Roe v. Wade. I think that
should be done, but would do it more explicitly.” (citation omitted)); Thornburgh
v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 788 (1986) (White, J.,
No. 3] The Call on the Field 797
before ascending to the Court commented that the “[h]eavy-
handed judicial intervention [in Roe] was difficult to justify.”
468
And perhaps most significant, Chief Justice Burger, a member
of Roe’s majority,
469
was questioning the decision by 1986: “The
soundness of our holdings must be tested by the decisions that
purport to follow them. If [Planned Parenthood of Central Missouri
v.] Danforth and today’s holding really mean what they seem to
say, I agree we should reexamine Roe.”
470
In addition, scholarly criticism began immediately after the
Court handed down Roe.
471
In 1973, pro-choice Yale professor
John Ely Hart
472
stated: “The opinion strikes the reader initially
as a sort of guidebook, addressing questions not before the
Court and drawing lines with an apparent precision one gener-
ally associates with a commissioner’s regulations. On closer
examination, however, the precision proves largely illusory.”
473
Harvard professor Laurence Tribe contemporaneously ex-
pressed a similar sentiment: “One of the most curious things
about Roe is that, behind its own verbal smokescreen, the sub-
stantive judgment on which it rests is nowhere to be found.”
474
And Professors Hart and Tribe have not been alone.
475
Given
dissenting) (“[T]he time has come to recognize that Roe v. Wade . . . ‘departs from a
proper understanding’ of the Constitution and to overrule it.” (quoting Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528, 557 (1985))); Roe, 410 U.S. at 174
(Rehnquist, J., dissenting) (“To reach its result, the Court necessarily has had to
find within the scope of the Fourteenth Amendment a right that was apparently
completely unknown to the drafters of the Amendment.”); Doe v. Bolton, 410 U.S.
179, 222 (1973) (White, J., dissenting) (“I find nothing in the language or history of
the Constitution to support the Court’s judgments. The Court simply fashions and
announces a new constitutional right for pregnant women . . . .”).
468. Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to
Roe v. Wade, 63 N.C.
L. REV. 375, 385 (1985).
469. Roe, 410 U.S. at 115.
470. Thornburgh, 476 U.S. at 785 (Burger, C.J, dissenting).
471. Cf. Ramos v. Louisiana, 140 S. Ct. 1390, 1427 (2020) (Alito, J., dissenting)
(noting scholarly approbation of nonunanimous verdicts, which the Apodaca
Court concluded were permissible under the Sixth Amendment).
472. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82
Y
ALE L.J. 920, 926 (1973) (“Were I a legislator I would vote for a statute very much
like the one the Court [in Roe] ends up drafting.”).
473. Id. at 922 (footnote omitted).
474. Laurence H. Tribe, Forward: Toward a Model of Roles in the Due Process of Life
and Law, 87
HARV. L. REV. 1, 7 (1973).
475. See, e.g., Timothy P. Carney, The pervading dishonesty of Roe v. Wade, W
ASH.
EXAMINER (Jan. 23, 2012, 12:00 AM), https://www.washingtonexaminer.com/the-
798 Harvard Journal of Law & Public Policy [Vol. 43
that Chief Justice Roberts considered persuasive less extensive
critiques of Williamson County,
476
one would expect Roe’s oppo-
nents to remind the Chief Justice early and often of the wide-
spread disapproval of Roe’s reasoning.
Finally, in his majority opinion in Knick, the Chief Justice cited
the shifting justification for the rule in Williamson County as
undercutting its precedential force.
477
As discussed above, one
can see multiple revisions in the Court’s abortion jurisprudence
over time—from being founded on privacy to being rooted in
dignity and autonomy, from employing a trimester framework
to using a structured undue burden standard that has further
morphed into an uncertain balancing test, and from the primacy
of the doctor in the decisionmaking process to the woman’s
right to make “the ultimate decision.”
478
Indeed, drawing from
Knick, abortion foes might argue to the Chief Justice that the
Roe Court errantly recognized an unenumerated right
wob-
bling on “shaky foundations,” with a shifting justification, and
with respect to which the Court has been in search of a worka-
ble test “for over [forty-five] years.”
479
3. Roe’s Workability
The fact that the constitutional test for abortion regulations
has evolved over the years could prove important to the Chief
Justice in evaluating Roe’s workability. Workability, however,
did not feature prominently in the Casey Court’s stare decisis
evaluation. Having decided to abandon the trimester frame-
work, the Court described Roe as a “simple limitation beyond
pervading-dishonesty-of-roe-v-wade [https://perma.cc/W8XH-CM6V] (recounting
numerous criticisms of Roe); Kermit Roosevelt, Opinion, Shaky Basis for a Constitu-
tional ‘Right,’
WASH. POST (Jan. 22, 2003), https://www.washingtonpost.com/
archive/opinions/2003/01/22/shaky-basis-for-a-constitutional-right/dd30d42e-188d-
42f6-8fb2-b935394e63aa/ [https://perma.cc/8HUY-DT33] (“As constitutional argu-
ment, Roe is barely coherent. The court pulled its fundamental right to choose
more or less from the constitutional ether.”).
476. See Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019).
477. Id. (“[T]he state-litigation requirement has been a rule in search of a justifica-
tion for over 30 years.”). With the Chief Justice as part of the majority, the Court in
Janus expressed a similar point. See Janus v. AFSCME, 138 S. Ct. 2448, 2472 (2018).
478. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 875 (1992) (plurality
opinion); see supra notes 391–399 and accompanying text (discussing how Casey
modified Roe).
479. Knick, 139 S. Ct. at 2178.
No. 3] The Call on the Field 799
which a state law is unenforceable.”
480
Gone were Justice
O’Connor’s concerns about the absence of a “bright line” rule
to guide legislatures and about courts being ill-equipped to
“act as science review boards.”
481
According to Casey, courts are
perfectly capable of evaluating regulations under the undue
burden standard with viability acting as the fulcrum.
482
Testing experience since Casey against what Chief Justice
Roberts has considered relevant in assessing workability sug-
gests he might not view Roe and Casey as setting out such a
simple and workable limitation. Based on the opinions he has
written or joined, key considerations in evaluating workability
include whether the decision has given rise to unreasonable or
unanticipated consequences
483
or draws unclear lines, which
result in different applications that create uncertainty and in-
crease litigation.
484
Roe’s advocates might point out that the
consequences of the decision have not resulted in a practical
conundrum like the one in Knick, but what the Casey Court an-
ticipated and what has happened have differed sharply.
Roe, even as the Casey Court interpreted it, has proved inca-
pable of yielding the result that the Court promised—“call[ing]
the contending sides of a national controversy to end their
national division by accepting a common mandate rooted in
the Constitution.”
485
Through persistent legislative action,
486
“States . . . have continued to ‘give it a try’ ever since”
487
Roe,
thereby spawning constant litigation.
488
480. Casey, 505 U.S. at 855.
481. City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 455, 458
(1983) (O’Connor, J., dissenting).
482. See Casey, 505 U.S. at 855 (discussing workability).
483. See Knick, 139 S. Ct. at 2179.
484. See Janus v. AFSCME, 138 S. Ct. 2448, 2481 (2018); Johnson v. United States, 135
S. Ct. 2551, 2557, 2562 (2015); Arizona v. Gant, 556 U.S. 332, 360 (2009) (Alito, J., dis-
senting); Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 902–04 (2007).
485. Casey, 505 U.S. at 867.
486. Elizabeth Nash, Lizamarie Mohammed & Olivia Cappello, Illinois Steps Up
as Other States Decimate Abortion Rights, G
UTTMACHER INST. (June 12, 2019), https://
www.guttmacher.org/article/2019/06/illinois-steps-other-states-decimate-abortion-
rights [https://perma.cc/ZF2L-2H37] (noting that “53 abortion restrictions ha[d]
been enacted in 17 states” in the first half of 2019).
487. Janus, 138 S. Ct. at 2481.
488. See Amanda Holpuch & Erin Durkin, ‘We’re in the fight of our lives’: Alabama
abortion law spurs lawsuits and protests, G
UARDIAN (May 15, 2019, 6:25 PM), https://
800 Harvard Journal of Law & Public Policy [Vol. 43
Moreover, Casey’s undue burden test did not even attract the
votes of a majority of the Justices hearing the case,
489
and the
test has proven difficult to apply. The Court in Hellerstedt in-
terpreted the undue burden test to require courts to balance the
burdens and benefits of abortion regulations.
490
When the
Court in Gonzales nine years earlier applied the undue burden
standard, however, it did not balance burdens and benefits, but
was more faithful to Casey’s text and considered whether the
applicable regulation had the “purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abor-
tion”
491
pre-viability.
492
With changes from one test to another
and with clear variations in application even within the Court,
it may be difficult to convince Chief Justice Roberts that Roe is
workable. The stream of litigation since Roe suggests that nei-
ther Roe nor Casey “provid[ed] a test that would be relatively
easy for . . . judges to apply,” and to the extent that Hellerstedt
calls for a free-flowing balancing exercise, the undue burden
standard now requires the type of “case-by-case, fact-specific
decisionmaking” that the Chief Justice rejected in Gant.
493
In-
deed, similar to what the Court said in Johnson with the Chief
Justice in the majority, Roe’s opponents reasonably can argue
www.theguardian.com/us-news/2019/may/15/were-in-the-fight-of-our-lives-
alabama-abortion-bill-spurs-lawsuits-and-protests [https://perma.cc/8VN4-PUGR]
(indicating that a lawsuit challenging an Alabama abortion ban “join[ed] a slew of
other legal actions filed in response to efforts in other states to drastically restrict
abortion access in the US”).
489. Cf. Alleyne v. United States, 570 U.S. 99, 120 (2013) (Sotomayor, J., concur-
ring) (“[A] decision may be ‘of questionable precedential value’ when ‘a majority
of the Court expressly disagreed with the rationale of [a] plurality.’” (alteration in
original) (quoting Seminole Tribe v. Florida, 517 U.S. 44, 66 (1996))). As the Ninth
Circuit Court of Appeals has explained, “[a]lthough parts of the joint opinion
were a plurality not joined by a majority of the Court, the joint opinion is nonethe-
less considered the holding of the Court . . . as the narrowest position supporting
the judgment.” Whole Woman’s Health v. Cole, 790 F.3d 563, 571 (9th Cir. 2015)
(citing Marks v. United States, 430 U.S. 188, 193 (1977)); see also Stenberg v. Carhart,
530 U.S. 914, 952 (2000) (Rehnquist, C.J., dissenting) (“Despite my disagreement
with the opinion, . . . the Casey joint opinion represents the holding of the Court in
that case.” (citing Marks, 430 U.S. at 193)).
490. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
491. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992) (plurality
opinion).
492. See Gonzales v. Carhart, 550 U.S. 124, 156–67 (2007) (considering the partial
birth abortion ban’s purpose and effect).
493. Arizona v. Gant, 556 U.S. 332, 360 (2009) (Alito, J., dissenting).
No. 3] The Call on the Field 801
that, “[a]ll in all, [Roe], [Casey], and [Hellerstedt have] failed to
establish any generally applicable test that prevents [judicial
decisionmaking] from devolving into guesswork and intui-
tion.”
494
Rather, “[e]ven [since Casey] tried to clarify the [scope
of the abortion right], [it] remains a ‘judicial morass that defies
systemic solution,’ ‘a black hole of confusion and uncertainty’
that frustrates any effort to impart ‘some sense of order and
direction.’”
495
Consequently, reminiscent of his Wayfair dissent,
Chief Justice Roberts might conclude that the Court in Casey
“compound[ed] its past error by trying to fix it”
496
and that an-
other attempted fix may compound the error even more. As he
said in Citizens United, stare decisis, “counsels deference to past
mistakes, but provides no justification for making new ones.”
497
4. Developments Since Roe
Although approaching the Chief Justice by defending Roe’s
reasoning and workability seems perilous, Roe’s supporters
may have an opportunity with respect to developments since
1973. Various developments appear to have influenced the
Chief Justice in the past. Among them are proof that the as-
sumptions underlying a precedent were incorrect;
498
changes in
technology;
499
changes in economic understanding;
500
attempts
to limit the precedent;
501
developments in constitutional law;
502
and that the Court previously addressed a point in an earlier
decision.
503
Of these, changes in constitutional law may prove
to be of particular import.
494. Johnson v. United States, 135 S. Ct. 2551, 2559 (2015).
495. Id. at 2562 (quoting United States v. Vann, 660 F.3d 771, 787 (4th Cir. 2011)
(Agee, J., concurring)).
496. South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2104 (2018) (Roberts, C.J.,
dissenting).
497. Citizens United v. FEC, 558 U.S. 310, 384 (2010) (Roberts, C.J., concurring).
498. See Janus v. AFSCME, 138 S. Ct. 2448, 2483 (2018); Kimble v. Marvel Entm’t,
LLC, 135 S. Ct. 2401, 2415 (2015) (Alito, J., dissenting); Halliburton Co. v. Erica P.
John Fund, Inc., 573 U.S. 258, 274–76 (2014).
499. See Citizens United, 558 U.S. at 364.
500. Kimble, 135 S. Ct. at 2415 (Alito, J., dissenting); Leegin Creative Leather
Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007).
501. Leegin, 551 U.S. at 901.
502. See Hurst v. Florida, 136 S. Ct. 616, 623–24 (2016).
503. See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 799 (2014).
802 Harvard Journal of Law & Public Policy [Vol. 43
The Court in Casey took a brief look at factual developments
and noted that abortion had become more safe and that viabil-
ity was coming earlier, but the Court suggested that those
changes “ha[d] no bearing on the validity of Roe’s central hold-
ing, that viability marks the earliest point at which the State’s
interest in fetal life is constitutionally adequate to justify a leg-
islative ban on nontherapeutic abortions.”
504
Yet the Roe Court
offered no factual support for viability as the appropriate
marker. It noted a divergence in thought about when life be-
gins, declared that the state could not put its thumb on the
scale, and declared that viability is the point at which the
state’s interest in protecting potential life becomes compel-
ling.
505
According to Roe, both logic and biology justified this
decision because, at viability, “the fetus . . . presumably has the
capability of meaningful life outside the mother’s womb.”
506
Whether something is meaningful, of course, is a value judg-
ment, and otherwise, as Professor Ely aptly stated, “the Court’s
defense seems to mistake a definition for a syllogism.”
507
When
a decision is not based on facts, factual changes cannot under-
mine it. As a result, factual developments as such may not be
relevant to the Chief Justice at all. The lack of a factual basis, on
the other hand, is another mark against Roe’s reasoning.
Developments in constitutional law since Roe, though, ap-
pear to weigh in favor of retaining the decision. In fact, the
Court’s decision in Obergefell seems to reflect not an erosion of
Roe, but an expansion of unenumerated rights arising out of the
Fourteenth Amendment’s liberty interest.
508
In his dissent in Lawrence, Justice Scalia asserted that Washington
v. Glucksberg,
509
in which the Court concluded that the Fourteenth
Amendment does not bar a prohibition against physician-
504. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992) (plurality
opinion).
505. See Roe v. Wade, 410 U.S. 113, 159–66 (1973).
506. Id. at 163.
507. Ely, supra note 472, at 924.
508. See Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (“[T]he right to marry
is a fundamental right inherent in the liberty of the person, and under the Due
Process and Equal Protection Clauses of the Fourteenth Amendment couples of
the same-sex may not be deprived of that right and that liberty.”).
509. 521 U.S. 702 (1997).
No. 3] The Call on the Field 803
assisted suicide, represented a retreat from Roe and Casey.
510
According to Justice Scalia, the Glucksberg Court concluded that
a right is fundamental under the Fourteenth Amendment “only
[if it is] ‘deeply rooted in this Nation’s history and tradition,’” a
question that the Court in Roe and Casey had not explored.
511
But the majority in Lawrence made no mention of Glucksberg
and looked to Casey as support for overruling Bowers,
512
and the
Court in Obergefell explained that, although Glucksberg’s ap-
proach may have been appropriate with respect to the right
considered therein, it did not exclude other approaches.
513
And
the Obergefell Court cited Lawrence when it stated that “[h]istory
and tradition guide and discipline [a fundamental rights] in-
quiry but do not set its outer boundaries.”
514
Thus, Roe’s proponents might argue to the Chief Justice that,
although the Obergefell Court made no mention of Roe or Casey,
Obergefell represents a development that reinforces those two
rulings. Moreover, recalling the concern that Justice Alito ex-
pressed in the Ramos dissent that the Chief Justice joined, pro-
choice advocates could maintain that Roe “is intertwined with
the body of [the Court’s Fourteenth] Amendment case law”
and that “[r]epudiating the reasoning of [Roe] will almost cer-
tainly prompt calls to overrule [Obergefell]” and other rulings
with similar roots.
515
The problem, of course, is that Obergefell
stresses that the Fourteenth Amendment inquiry is right-specific,
and to argue that constitutional developments fortify Roe, one
may need to bring up a decision the Chief Justice considered one
of alarming judicial overreach.
516
That could be a bridge too far.
510. See Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting) (ob-
serving that the Court in Glucksberg concluded that a person does not have a con-
stitutional right to physician-assisted suicide because such a right was not
grounded in “this Nation’s history and tradition” (quoting Glucksberg, 521 U.S. at
721) (internal quotation marks omitted)).
511. Id.
512. See id. at 573–74 (majority opinion) (citing Casey as a development that under-
mined Bowers).
513. See Obergefell, 135 S. Ct. at 2602.
514. Id. at 2598 (citing Lawrence, 539 U.S. at 572).
515. Ramos v. Louisiana, 140 S. Ct. 1390, 1436 (2020) (Alito, J., dissenting).
516. See Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting) (“The majority’s
decision is an act of will, not legal judgment. The right it announces has no basis
in the Constitution or this Court’s precedent.”).
804 Harvard Journal of Law & Public Policy [Vol. 43
5. Reliance on Roe
Which way reliance pushes Chief Justice Roberts may de-
pend on how broadly he conceives the factor. The Court in Casey
employed an expansive view, looking to economic and social
developments since the Court decided Roe.
517
To win favor with
the Chief Justice on reliance, Roe’s defenders likely will need to
convince him that Casey’s conception represents the relevant
standard with respect to precedent under which the Court has
recognized a constitutional right.
That is a hard sell. Opinions since the Chief Justice’s eleva-
tion to the Court have taken a narrower view of reliance inter-
ests. Just recently in Ramos, with the Chief Justice joining, Justice
Alito underscored the concrete reliance interests related to
Apodaca, contrasting those interests with what the Montejo dis-
sent raised and the Montejo majority (including the Chief Justice)
rejected—a vague “public . . . interest ‘in knowing that counsel,
once secured, may be reasonably relied upon as a medium be-
tween the accused and the power of the State.’”
518
This interest,
according to Justice Alito, was an “abstract [one], if it c[ould] be
called reliance in any proper sense of the term.”
519
Additionally,
the Janus Court emphasized that reliance interests are weaker
when there is uncertainty regarding the applicable standard
and when there are significant questions about a decision’s
continuing vitality.
520
Moreover, the Court in Janus stressed that
reliance is a less important factor when overruling a decision
will have only a short-term effect on expectations and affected
parties have the ability to protect themselves against the
changes that would result.
521
Under this narrower view, Roe is more vulnerable to attack.
Looking to what Justice Alito said about Montejo in Ramos, one
might suggest to the Chief Justice that the nebulous societal
reliance the Casey Court credited is not “reliance in any proper
517. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 855–56 (1992).
518. Ramos, 140 S. Ct. at 1439 (Alito, J., dissenting) (quoting Montejo v. Louisiana,
556 U.S. 778, 809 (2009) (Stevens, J., dissenting)).
519. Id.
520. See Janus v. AFSCME, 138 S. Ct. 2448, 2484–85 (2018).
521. See id.; see also Ramos, 140 S. Ct. at 1439 (Alito, J., dissenting) (reiterating the
Janus Court’s conclusion that the ability to protect against consequences if a prec-
edent is overruled mitigates reliance interests with respect to the precedent).
No. 3] The Call on the Field 805
sense of the term.”
522
As the Court in Casey conceded, and deci-
sions since Chief Justice Roberts joined the Court have con-
firmed, reliance usually takes on significance when a precedent
involves contract or property rights,
523
and Roe does not impli-
cate those rights. Also, in Kisor and Ramos, the Chief Justice os-
tensibly feared that overruling precedent would bring about an
avalanche of legal challenges to decisions in which courts had
relied on precedent,
524
and overruling Roe quite likely would
put a damper on, if not smother, most constitutional abortion-
related litigation. Furthermore, any legitimate reliance interest
in Roe surely has been weakened substantially by the obvious
uncertainty surrounding Roe’s future, which uncertainty is
manifest both in commentary
525
and in legislative efforts to
shore up abortion rights in the event that the Court overrules
Roe.
526
Finally, pointing to those legislative developments and
to the availability of birth control,
527
abortion opponents might
look to Janus and argue that “it would be unconscionable
to . . . abridge[] in perpetuity” the States’ right to enact legislation
prohibiting abortion when the public can take steps to preserve
access to abortion or to prevent the need for the procedure.
528
522. Ramos, 140 S. Ct. at 1439 (Alito, J., dissenting).
523. See Citizens United v. FEC, 558 U.S. 310, 365 (2010); Arizona v. Gant, 556
U.S. 332, 358–59 (2009) (Alito, J., dissenting); Pearson v. Callahan, 555 U.S. 223, 233
(2009); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992).
524. See Ramos, 140 S. Ct. at 1436 (Alito, J., dissenting) (observing that “thou-
sands and thousands of trials” had been held based on Apodaca’s validity); Kisor
v. Wilkie, 139 S. Ct. 2400, 2422 (2019) (noting that lower courts had applied Auer
or Seminole Rock “thousands of times”).
525. See, e.g., Rebecca Shapiro, CNN’s Jeffrey Toobin: ‘No Doubt’ Abortion Will Be Illegal
In 20 States In 18 Months, H
UFFPOST (June 28, 2018), https://www.huffpost.com/entry/
jeffrey-toobin-abortion-illegal-20-states-18-months_n_5b33ea80e4b0b5e692f3dced
[https://perma.cc/Q337-ES88] (“Roe v. Wade is doomed.” (quoting CNN legal
analyst Jeffrey Toobin) (internal quotation marks omitted)).
526. See Nash et al., supra note 486 (indicating that Roe is under direct threat and
identifying state efforts to protect the abortion right).
527. See P
LANNED PARENTHOOD, A HISTORY OF BIRTH CONTROL METHODS (2012),
https://www.plannedparenthood.org/files/2613/9611/6275/History_of_BC_Methods.pdf
[https://perma.cc/4EXN-XY8K] (describing various methods of birth control).
528. Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018). Of course, Roe’s proponents
might point out that the availability of birth control is no solution when emergency
contraception can be ineffective following nonconsensual sex. Emergency Contraception,
HHS.
GOV (May 21, 2019), https://www.hhs.gov/opa/pregnancy-prevention/birth-
control-methods/emergency-contraception/index.html [https://perma.cc/AQM8-DX96].
806 Harvard Journal of Law & Public Policy [Vol. 43
To be successful with the Chief Justice, therefore, pro-choice
advocates likely will need to convince him that Roe really is a
unique case and thus he must take into account the broader
reliance interests that Casey identified. Although the Court in
Hyatt took away the right of private parties to sue a state in the
court of another state,
529
that right simply is not of the same
magnitude as a right to choose abortion. Moreover, Roe’s sup-
porters might remind Chief Justice Roberts that he joined Justice
Alito’s dissents in both Gant and Ramos, which emphasized re-
liance interests unrelated to contract and property rights,
530
and
that the Chief Justice himself indicated in Knick that reliance
interests take on greater importance “when rules that . . . ’serve
as a guide to lawful behavior’ are at issue.”
531
As discussed
above, although abortion foes might point to Lawrence and
Obergefell as evidence that the Court has abandoned a broad
view of reliance like that in Casey, both Lawrence and Obergefell
expanded individual rights and a decision to overrule Roe
would abridge such a right.
532
Of course, persuading the Chief Justice that he should em-
ploy a broad view of reliance a la Casey would not end the in-
quiry. Instead, it would invite a skirmish over some of Casey’s
premises for finding reliance to be a key factor—that the avail-
ability of abortion has influenced how “people have organized
[their] intimate relationships” and has facilitated “[t]he ability
of women to participate equally in the economic and social life
of the Nation.”
533
To win the battle over these assertions, the
parties would be left to offer competing evidence.
D. Effect of Overruling Roe on the Court’s Legitimacy
After evaluating how various stare decisis factors applied in
relation to Roe, the Court in Casey offered a long discourse
529. See supra notes 300–307 and accompanying text (discussing Hyatt).
530. See Ramos v. Louisiana, 140 S. Ct. 1390, 1425 (Alito, J., dissenting) (weigh-
ing heavily reliance by courts in trials that have been completed); Arizona v. Gant,
556 U.S. 332, 358–59 (2009) (Alito, J., dissenting) (arguing that reliance interests
enjoy considerable weight when dealing with routine police practices).
531. Knick v. Township of Scott, 139 S. Ct. 2162, 2179 (2019) (quoting United
States v. Gaudin, 515 U.S. 506, 521 (1995)).
532. See supra note 389 and accompanying text (discussing Lawrence and Obergefell).
533. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 856 (1992) (plurality
opinion).
No. 3] The Call on the Field 807
about the need to preserve the Court’s legitimacy, and at the
end, the Casey Court proclaimed that “[a] decision to overrule
Roe’s essential holding under the existing circumstances would
address error, if error there was, at the cost of both profound
and unnecessary damage to the Court’s legitimacy, and to the
Nation’s commitment to the rule of law.”
534
Thus, if the Chief
Justice concludes that he must apply Casey’s approach to stare
decisis, he would need to reach beyond whatever specific fac-
tors he might address and speak to the question of legitimacy.
And even if he does not conclude that he is bound by Casey, he
almost certainly would address the question as one of funda-
mental importance.
535
Lawrence and Obergefell suggest that “overrul[ing a prior de-
cision] under fire”
536
should not give rise to the same level of
apprehension regarding legitimacy that it did in Casey. And
those worries are unlikely to influence the Chief Justice’s think-
ing anyway, for his views regarding legitimacy differ sharply
from those the Casey Court articulated. In his Obergefell dissent,
Chief Justice Roberts explained that legitimacy “flows from the
perception—and reality—that [the Court] exercise[s] humility
and restraint in deciding cases according to the Constitution
and law.”
537
In addition, he stressed in his Citizens United con-
currence that “adherence to a precedent . . . impedes the stable
and orderly adjudication of future cases . . . when the prece-
dent’s validity is so hotly contested that it cannot reliably func-
tion as a basis for decision in future cases . . . and when the
precedent’s underlying reasoning has become [seriously] dis-
534. Id. at 869.
535. See Confirmation Hearing, supra note 3, at 143–44 (statement of Judge John G.
Roberts, Jr.) (indicating that legitimacy is an important consideration when decid-
ing to overrule a prior decision); cf. Adam Liptak, In Surprise Abortion Vote, John
Roberts Avoids ‘Jolt to the Legal System,’ N.Y.
TIMES (Feb. 8, 2019), https://nyti.ms/
2DYUuJ6 [https://perma.cc/ZKF4-FBY8] (describing the Chief Justice as “a guardian
of his court’s legitimacy”); William McGurn, Opinion John Roberts’s ‘Illegitimate’
Court, W
ALL STREET J. (May 27, 2019 4:35 P.M.), https://www.wsj.com/articles/john-
robertss-illegitimate-court-11558989312 [https://perma.cc/Z6Q4-F32W] (“[N]ews
stories about a big case that may end up before the Supreme Court come with a
warning that what’s at stake is the ‘legitimacy of the Roberts court.’”).
536. Casey, 505 U.S. at 867 (plurality opinion); see supra notes 508–516 and ac-
companying text (discussing Lawrence and Obergefell).
537. Obergefell v. Hodges, 135 S. Ct. 2584, 2624 (2015) (Roberts, C.J., dissenting).
808 Harvard Journal of Law & Public Policy [Vol. 43
credited.”
538
Moreover, Chief Justice Roberts was part of a six-
Justice majority with two additional Justices concurring in the
judgment in Johnson, a case in which the Court declared that
propping up two recent cases under stare decisis would under-
mine “‘evenhanded, predictable, and consistent development
of legal principles[,]’ . . . the goals that stare decisis is meant to
serve.”
539
Finally, in Kimble, the Chief Justice signed on to Justice
Alito’s dissenting opinion that decried the majority’s use of
stare decisis to preserve a prior ruling that Justice Alito be-
lieved was the product of judicial policymaking: “The Court
employs stare decisis, normally a tool of restraint, to reaffirm a
clear case of judicial overreach. . . . Stare decisis does not require
us to retain this baseless and damaging precedent.”
540
Thus,
even in the context of statutory interpretation, where stare decisis
normally holds particular strength, the Chief Justice appears open
to discarding a decision in which the Court exceeded its authority.
The Chief Justice’s views as expressed in his Obergefell and
Citizens United opinions and in Justice Alito’s Kimble dissent do
not reflect a recent revelation. They date at least as far back as
Chief Justice Roberts’s confirmation hearing, when he de-
scribed the Court’s decision in Brown v. Board of Education
541
to
overrule Plessy v. Ferguson
542
not as an act hubris, but one of
restraint because the Court had focused on legal argument and
the erosion of precedent, refusing to cower at the prospect of
pandemonium that might result from disposing of Plessy.
543
Therefore, according to the Chief Justice, legitimacy depends
on “humility and restraint,”
544
and restraint sometimes requires
the Court to overrule hotly contested decisions.
For the Chief Justice, restraint is characterized by three fun-
damental principles. First, the Court should refrain from insert-
ing itself into controversial issues except in those cases when
538. Citizens United v. FEC, 558 U.S. 310, 379 (2010) (Roberts, C.J., concurring).
539. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (quoting Payne v.
Tennessee, 501 U.S. 808, 827 (1991)).
540. Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2415 (2015) (Alito, J., dissenting).
541. 347 U.S. 483 (1954).
542. 163 U.S. 537 (1896).
543. See Confirmation Hearing, supra note 3, at 409 (statement of Judge John G.
Roberts, Jr.).
544. Obergefell, 135 S. Ct. at 2624 (Roberts, C.J., dissenting).
No. 3] The Call on the Field 809
there is a case or controversy—as the Constitution requires.
545
Second, the Court should defer to the political branches when-
ever possible. And third, the Court should avoid deciding
more than is necessary to resolve a case.
Regarding the first principle, the Chief Justice was clear in
his confirmation hearing: “[J]udges should be very careful to
make sure they’ve got a real case or controversy before them,
because that is the sole basis for the legitimacy of them acting
in the manner they do in a democratic republic.”
546
And opin-
ions he has written since joining the Court testify to his com-
mitment to this constitutional requirement.
547
For example,
when the Court turned away the challenge to partisan gerry-
mandering in the 2019 Rucho decision, Chief Justice Roberts
wrote in his opinion that the “case or controversy” requirement
has been understood to mean that the judiciary must avoid
questions that are not appropriate to the judicial process.
548
Likewise, he dissented from the Court’s decision to strike down
the Defense of Marriage Act
549
in United States v. Windsor,
550
agreeing with Justice Scalia that there was no case or contro-
545. See U.S. CONST. art. III, § 2, cl. 1 (“The judicial Power shall extend to all
Cases [and] . . . Controversies . . . ”).
546. Confirmation Hearing, supra note 3, at 342 (statement of Judge John G.
Roberts, Jr.).
547. The Chief Justice’s recent vote to declare a Second Amendment claim moot,
over some very compelling arguments by Justice Alito in dissent, might suggest
that he is committed to the case or controversy requirement to a fault. See N.Y.
State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525, 1525–26 (2020).
Some, however, have not been so charitable in describing the Chief Justice’s mo-
tives. See Editorial Board, Opinion, The Chief Justice Ducks on Gun Rights, W
ALL
STREET J. (Apr. 27, 2020, 6:49 PM), https://www.wsj.com/articles/the-chief-justice-
ducks-on-gun-rights-11588026396 [https://perma.cc/N639-APUS] (“The Chief Justice
is carving out a reputation as a highly political Justice whose views on the law can
be coerced with threats to the Court’s ‘independence.’”).
548. See Rucho v. Common Cause, 139 S. Ct. 2484, 2493–94 (2019) (“Article III of
the Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.’ We
have understood that limitation to mean that federal courts can address only
questions ‘historically viewed as capable of resolution through the judicial pro-
cess.’” (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968))).
549. Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2018) and
28 U.S.C. § 1738C (2018)).
550. 570 U.S. 744, 751–52 (2013).
810 Harvard Journal of Law & Public Policy [Vol. 43
versy to be resolved because the Government had stopped de-
fending the act.
551
The weight Chief Justice Roberts gives to stare decisis when
a precedent involves statutory interpretation or a when a mat-
ter comes within a sphere where Congress has broad authority
reflects his adherence to the second principle of restraint.
552
The
Chief Justice’s dissent in Wayfair in fact evidences downright
distrust of the Court’s ability to fix one of its previous errors
553
and stresses why the Court should leave correction to the legis-
lative process when that process can provide a remedy: “A
good reason to leave these matters to Congress is that legisla-
tors may more directly consider the competing interests at
stake. Unlike this Court, Congress has the flexibility to address
these questions in a wide variety of ways [and can] . . . ‘investigate
and analyze facts beyond anything the Judiciary could match.’”
554
And the Court in Bay Mills, a 5-4 decision in which the Chief
Justice was part of the majority, expressed a similar sentiment.
555
Moreover, Chief Justice Roberts has stretched to defer to the
political process under intense pressure to do otherwise. He
famously—or infamously, depending on one’s perspective—
wrote the opinion of the Court in National Federation of Independent
Business v. Sebelius,
556
a case in which the Court upheld the in-
dividual mandate under President Barack Obama’s Patient
Protection and Affordable Care Act,
557
going out of his way to
conclude that enacting the mandate was a proper exercise of
551. See id. at 775 (Robert, C.J., dissenting) (“I agree with Justice Scalia that this
Court lacks jurisdiction to review the decisions of the courts below.”); id. at 782
(Scalia, J., dissenting) (“What the petitioner United States asks us to do in the case
before us is exactly what the respondent Windsor asks us to do: not to provide
relief from the judgment below but to say that that judgment was correct.”).
552. See supra Part I.A (discussing cases in which the Chief Justice deemed a
strong form of stare decisis appropriate).
553. See South Dakota v. Wayfair, 138 S. Ct. 2080, 2104 (2018) (Roberts, C.J., dis-
senting) (“I fear the Court today is compounding its past error by trying to fix it in
a totally different era.”).
554. Id. (quoting Gen. Motors Corp. v. Tracy, 519 U.S. 278, 309 (1997)).
555. See Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 800–01 (2014)
(“Congress . . . has the greater capacity ‘to weigh and accommodate the compet-
ing policy concerns and reliance interests’ involved . . . .” (quoting Kiowa Tribe v.
Mfg. Techs., Inc., 523 U.S. 751, 759 (1998))).
556. 567 U.S. 519 (2012).
557. 26 U.S.C. § 5000A (2018).
No. 3] The Call on the Field 811
Congress’s taxing authority.
558
In Sebelius, he explained:
“‘[E]very reasonable construction must be resorted to, in order
to save a statute from unconstitutionality.’ . . . Granting the Act
the full measure of deference owed to federal statutes, it can
be . . . read [as imposing a tax].”
559
Furthermore, in the context of guarantees to due process and
equal protection, the Chief Justice voted in favor of deferring to
Congress’s decision to enact the Defense of Marriage Act
560
and
recognizing that the States have broad latitude in defining mar-
riage.
561
His explanation of the judicial role and judicial over-
reach in Obergefell expresses his view quite distinctly:
Just who do we think we are?
It can be tempting for judges to confuse our own prefer-
ences with the requirements of the law. . . . “[C]ourts are not
concerned with the wisdom or policy of legislation.” The
majority today neglects that restrained conception of the ju-
dicial role. It seizes for itself a question the Constitution
leaves to the people, at a time when the people are engaged
in a vibrant debate on that question.
562
Finally, the Chief Justice’s view of judicial restraint extends
to how he believes courts should go about deciding cases. In
his Citizens United concurrence, he noted approvingly the
Court’s approach—first determining whether the case could be
decided on statutory grounds, then considering whether it
could be decided on narrow constitutional grounds, and only
558. NFIB, 567 U.S. at 575.
559. Id. at 563 (quoting Hooper v. California, 155 U.S. 648, 657 (1895)).
560. See United States v. Windsor, 570 U.S. 744, 775 (2013) (Roberts, C.J., dissent-
ing) (“I . . . agree with Justice Scalia that Congress acted constitutionally in pass-
ing the Defense of Marriage Act (DOMA). Interests in uniformity and stability
amply justified Congress’s decision to retain the definition of marriage that, at
that point, had been adopted by every State in our Nation, and every nation in the
world.”); id. at 795 (Scalia, J., dissenting) (“[T]he Constitution does not forbid the
government to enforce traditional moral and sexual norms. . . . [T]here are many
perfectly valid—indeed, downright boring—justifying rationales for this legisla-
tion. Their existence ought to be the end of this case.” (citing Lawrence v. Texas,
539 U.S. 558, 599 (2003) (Scalia, J., dissenting))).
561. See Obergefell v. Hodges, 135 S. Ct. 2584, 2611 (2015) (Roberts, C.J., dissent-
ing) (“[T]his Court is not a legislature. Whether same-sex marriage is a good idea
should be of no concern to us.”).
562. Id. at 2612 (citation omitted) (quoting Lochner v. New York, 198 U.S. 45, 69
(1905) (Harlan, J., dissenting)).
812 Harvard Journal of Law & Public Policy [Vol. 43
after those two avenues had been exhausted, taking the more
drastic step of overruling Austin.
563
The Chief Justice’s majority
opinion in the Court’s 2007 decision in FEC v. Wisconsin Right
to Life, Inc. (WRTL)
564
offers an important contrast. In WRTL, the
Court did not reconsider Austin because it was not asked to do
so.
565
Moreover, the Court declined to conclude that the federal
statute at issue in WRTL was facially invalid because it had
been presented only with an as-applied challenge.
566
It was not
until the Court directly faced the question of overruling Austin in
Citizens United that the Court decided to do so,
567
and it was not
until Citizens United that the Court struck down the federal stat-
ute at issue in WRTL as facially invalid.
568
Similarly, with Chief
Justice Roberts in the majority, the Court in Harris v. Quinn
569
declined a request to overrule Abood
570
as it struck down on
First Amendment grounds an Illinois law that required nonun-
ion members to pay agency fees.
571
Rather than overruling
Abood in haste, the Court waited four years to take that step in
563. See Citizens United v. FEC, 558 U.S. 310, 374–75 (2010) (Roberts, C.J., con-
curring) (discussing the sequence of the majority’s analytical process).
564. 551 U.S. 449 (2007).
565. See Citizens United, 558 U.S. at 377 (Roberts, C.J., concurring) (indicating
that the question of whether Austin should be overruled was not raised in WRTL).
Notably, the Chief Justice joined Justice Alito’s dissent in Gant, which objected to
the Court’s decision to overrule Belton and Thornton when the defendant had not
asked it to do so. See Arizona v. Gant, 556 U.S. 332, 355 (2009) (Alito, J., dissenting).
566. See WRTL, 551 U.S. at 464 (“After all, appellants reason, McConnell already
held that [§ 203 of the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-
155, 116 Stat. 81 (BCRA)] was facially valid. These cases, however, present the
separate question whether § 203 may constitutionally be applied to these specific
ads.”); id. at 482 (Alito, J., concurring) (“I join the principal opinion because I con-
clude . . . that because § 203 is unconstitutional as applied to the advertisements
before us, it is unnecessary to go further and decide whether § 203 is unconstitu-
tional on its face.”).
567. See Citizens United, 558 U.S. at 365.
568. See id. at 365–66 (overruling McConnell and striking down BCRA § 203).
569. 573 U.S. 616 (2014).
570. See id. at 658 (Kagan, J., dissenting) (“Today’s majority cannot resist taking
potshots at Abood, but it ignores the petitioners’ invitation to depart from princi-
ples of stare decisis.” (citation omitted) (citing id. at 635–38 (majority opinion)));
Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018) (“[I]n Harris, we were asked to
overrule Abood, and . . . we found it unnecessary to take that step . . . .”).
571. See Harris, 573 U.S. at 624, 635–39, 645–46 (describing the Illinois law, criti-
cizing Abood, and refusing to extend its reasoning to the law under consideration).
No. 3] The Call on the Field 813
Janus when it encountered a statute that was more like the one
at issue in Abood than the one considered in Harris.
572
C
ONCLUSION
When evaluating how the Chief Justice might vote with re-
spect to a direct challenge to Roe, one must understand well
what he believes is necessary for a legitimate decision. For
Chief Justice Roberts, legitimacy and restraint go hand in hand,
as he made clear from day one:
Judges have to have the courage to make the unpopular
decisions when they have to. That sometimes involves strik-
ing down Acts of Congress. That sometimes involves ruling
that acts of the Executive are unconstitutional. That is a re-
quirement of the judicial oath. You have to have that cour-
age. But you also have to have the self-restraint to recognize
that your role is limited to interpreting the law and doesn’t
include making the law.
573
The Chief Justice’s Obergefell dissent reveals a consistent sen-
timent: “The legitimacy of this Court ultimately rests ‘upon the
respect accorded to its judgments.’ That respect flows from the
perception—and reality—that we exercise humility and restraint
in deciding cases according to the Constitution and law.”
574
And given that dissent, it would not be at all surprising to
learn that he believes that the Court in Roe failed to act with
restraint and thereby undermined the Court’s institutional le-
gitimacy. But in deciding what to do with Roe now, the Chief
Justice likely would assess whether the Court can put the genie
back in the bottle—whether the act of overruling Roe will help
to restore the Court’s legitimacy or damage it more—whether
overruling Roe would be an act of hubris like what he saw in
Obergefell or an act of restraint like what he saw in Brown.
575
572. See Janus, 138 S. Ct. at 2463, 2486 (indicating that the Abood Court had up-
held a similar “agency-shop arrangement” and overruling Abood).
573. See Confirmation Hearing, supra note 3, at 256 (statement of Judge John G.
Roberts, Jr.).
574. Obergefell v. Hodges, 135 S. Ct. 2584, 2624 (Roberts, C.J., dissenting) (cita-
tion omitted) (quoting Republican Party of Minn. v. White, 536 U.S. 765, 793
(2002) (Kennedy, J., concurring)).
575. See Confirmation Hearing, supra note 3, at 409 (statement of Judge John G.
Roberts, Jr.) (discussing Brown).
814 Harvard Journal of Law & Public Policy [Vol. 43
Chief Justice Roberts declared in his confirmation hearing
that “the rule of law—that’s the only client I have as a judge.”
576
Based on his judicial approach since joining the Court, one
would expect that the Chief Justice will serve his client by mov-
ing cautiously. History suggests that he only will reconsider an
earlier Court ruling if asked to do so and if he must do so to
decide the case. And if both of those conditions are met with
respect to Roe, one would expect that he will apply traditional
factors associated with stare decisis, not ducking the question
of error as the Casey Court did, but assessing whether Roe was
“not just wrong” but “exceptionally ill founded.”
577
When Chief Justice Roberts described the job of a judge as
being that of an umpire, he added that “[n]obody ever went to
a ball game to see the umpire.”
578
Given the current climate,
though, that statement seems to reflect an aspiration, not an
observation. If abortion opponents succeed in getting the Court
to “check the tapes” on Roe,
579
everyone will line up to see how
Chief Justice Roberts—the most powerful umpire in America
580
—
calls the pitch.
576. Id. at 279.
577. Knick v. Township of Scott, 139 S. Ct. 2162, 2178 (2019).
578. Confirmation Hearing, supra note 3, at 55 (statement of Judge John G. Roberts, Jr.).
579. See Connor Groel, Upon Further Review: Instant Replay Should Be Banned from
Sports, T
OP LEVEL SPORTS (May 17, 2019), https://toplevelsports.net/upon-further-
review-instant-replay-should-be-banned-from-sports/ [https://perma.cc/LK84-JLCJ]
(referring to instant replay as “stop[ping] play to check the tapes”).
580. Adam Liptak, John Roberts, Leader of Supreme Court’s Conservative Majority,
Fights Perception That It Is Partisan, N.Y.
TIMES (Dec. 23, 2018), https://nyti.ms/
2RlcjKd [https://perma.cc/4M8A-7CLP] (“[Chief Justice Roberts] has taken Justice
Kennedy’s place as the swing vote at the court’s ideological center, making him
the most powerful chief justice in 80 years.”).
DEATH QUALIFICATION AND THE RIGHT TO TRIAL
BY
JURY: AN ORIGINALIST ASSESSMENT
INTRODUCTION
The Sixth Amendment of the Constitution guarantees crimi-
nal defendants the right to a trial “by an impartial jury.”
1
But
criminal procedure has evolved substantially since 1791, rais-
ing the question of which changes are permissible under the
original meaning of the Sixth Amendment. As now-Judge Joan
Larsen notes, the modern jury “bears such faint resemblance to
the jury of 1791, that if the Court decides to seriously engage
the project of restoring the original jury it will find itself very
busy indeed.”
2
However, the Court has shown some willing-
ness to cut through precedent to return to the original public
meaning in criminal procedure cases. Indeed, “the Court’s
Sixth Amendment jurisprudence is in the midst of an original-
ist revolution. Starting with Jones v. United States and continu-
ing through Apprendi v. New Jersey, Ring v. Arizona, Blakely v.
Washington, and Crawford v. Washington, the Court stands
poised to refasten Sixth Amendment jurisprudence to its histor-
ical underpinnings.”
3
This “originalist revolution” continued
this year in Ramos v. Louisiana,
4
where the Court held that non-
unanimous jury convictions for serious crimes violate the Sixth
Amendment.
5
Given this trend, it is possible that the Court will
reassess its death qualification jurisprudence on originalist
grounds.
This Note analyzes whether death qualification—the process
of removing potential jurors who are unwilling to impose the
death penalty—survives an originalist assessment. It begins
with the background of death qualification and then analyzes
whether the process survives a number of potential originalist
1. U.S. CONST. amend. VI.
2. Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relation-
ship with the Jury, 71 O
HIO ST. L.J. 959, 961 (2010) (footnote omitted).
3. G. Ben Cohen & Robert J. Smith, The Death of Death-Qualification, 59 C
ASE W.
RES. L. REV. 87, 88 (2008) (footnotes omitted).
4. 140 S. Ct. 1390 (2020).
5. Id. at 1394–97.
816 Harvard Journal of Law & Public Policy [Vol. 43
objections. Ultimately, it concludes that although there was
no direct analogue for death qualification at common law or
in criminal procedure at the time of the ratification of the
Constitution and Bill of Rights, death qualification does not
violate an originalist understanding of the Sixth Amendment
right to an impartial jury or of a constitutional criminal trial.
I. S
UPREME COURT JURISPRUDENCE AND THE POLICY OF
D
EATH QUALIFICATION
A. Legal Background
Death qualification is a step in the jury selection process in
capital cases in which potential jurors are dismissed if they
would be categorically unwilling to impose the death penalty.
6
This includes potential jurors who are unwilling to impose the
death penalty as a sentence as well as those who are, regardless
of the evidence, unwilling to find guilt when execution is a po-
tential penalty.
7
These potential jurors are excluded from the
jury for cause, thus not requiring any of the prosecution’s per-
emptory strikes.
8
Only potential jurors who are unwilling to
impose the death penalty are excluded: those who personally
oppose the death penalty but would be willing to impose it are
not.
9
The question of whether death-qualified juries violate the
original meaning of the right to an impartial jury is significant
in criminal procedure. In Lockhart v. McCree,
10
the Supreme
Court rejected the argument that excluding jurors who are un-
willing to impose the death penalty in capital cases violates a
defendant’s Sixth Amendment right to an impartial jury.
11
Writing for the Court, Justice Rehnquist stated:
[T]he Constitution presupposes that a jury selected from a
fair cross section of the community is impartial, regardless
of the mix of individual viewpoints actually represented on
6. See Susan D. Rozelle, The Utility of Witt: Understanding the Language of Death
Qualification, 54
BAYLOR L. REV. 677, 677 (2002).
7. Id. at 680.
8. See id. at 677.
9. Id. at 681–82.
10. 476 U.S. 162 (1986).
11. See id. at 183 (“[I]t is simply not possible to define jury impartiality, for consti-
tutional purposes, by reference to some hypothetical mix of individual viewpoints.”).
No. 3] Death Qualification 817
the jury, so long as the jurors can conscientiously and
properly carry out their sworn duty to apply the law to the
facts of the particular case.
12
However, Justice Rehnquist relied on precedent and reason
rather than analysis of the original public meaning of the
Constitution to arrive at this conclusion.
13
As the current Court
revisits various aspects of criminal procedure with an original-
ist lens, it is worth analyzing whether the original meaning of
the Sixth Amendment would prevent the exclusion of jurors
who would be unwilling to impose capital punishment.
B. The Policy Significance of Death Qualification
The impact of a constitutional ban on death qualification
would be significant. Allowing those who are unwilling to im-
pose the death penalty to serve on capital juries would effec-
tively end the death penalty in America. Because the death
penalty has become more controversial and less popular over
the last several decades,
14
it is likely that many capital juries
would include at least one person that is unwilling to impose
the sentence. But the elimination of the death penalty by object-
ing jurors could be just the tip of the iceberg if the Court found
that jurors could not be excluded for cause if they were unwill-
ing to uphold the law. Indeed, with the rise of the prison aboli-
tion movement and the increasing categorical opposition to
imprisonment as well as the death penalty, objecting jurors
could potentially alter the entire system of criminal justice in
America.
15
12. Id. at 184.
13. See id. at 178 (“The view of jury impartiality urged upon us by [the defend-
ant] is both illogical and hopelessly impractical.”).
14. See, e.g., Death Penalty, G
ALLUP (2019), https://news.gallup.com/poll/1606/
death-penalty.aspx [https://perma.cc/3P2S-D7M2] (charting the decline of American
support for the death penalty for a person convicted of murder from a high of 80
percent in 1994 to 56 percent in 2019).
15. Prison abolitionism has gained increased publicity in recent years. Some
self-described prison abolitionists are merely advocates of aggressive forms of
criminal justice reform with the aspirational goal of eliminating the need for prison.
See Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA
L. REV.
1156, 1161 (2015). However, others advocate for the wholesale end of prison even
for the most violent criminals. As John Washington summarizes, “Abolitionists
believe that incarceration, in any form, harms society more than it helps.” John
Washington, What Is Prison Abolition?, N
ATION (July 31, 2018), https://
www.thenation.com/article/what-is-prison-abolition/ [https://perma.cc/GPA5-UFAZ].
818 Harvard Journal of Law & Public Policy [Vol. 43
On the other hand, the exclusion of those who are unwilling
to impose the death penalty from juries raises compelling ques-
tions of partiality as the word is commonly understood today.
There is robust literature to suggest that death qualification
disproportionately reduces the number of women and people
of color on capital juries.
16
There is also evidence to suggest that
death-qualified juries are more conviction-prone than normal
juries in criminal trials.
17
However, the Court in Lockhart rejected
these arguments, noting “serious doubts about the value of
these studies in predicting the behavior of actual jurors.”
18
The
Court went further and said that, even assuming they accepted
the studies as true, death qualification would still be constitu-
tional.
19
The Court noted that there is no “fair-cross-section”
requirement for petit juries, but that even if there were such a
requirement, the Court found that:
The essence of a “fair-cross-section” claim is the systematic
exclusion of “a ‘distinctive’ group in the community.” In our
view, groups defined solely in terms of shared attitudes that
would prevent or substantially impair members of the
group from performing one of their duties as jurors . . . are
not “distinctive groups” for fair-cross-section purposes.
20
In short, the Court found that the exclusion of potential jurors
with beliefs that render them unwilling to impose a penalty
Indeed, the Harvard Law Review recently dedicated an entire issue to prison aboli-
tionism. See Introduction, 132
HARV. L. REV. 1568 (2019) (introducing the Harvard
Law Review’s issue focused on prison abolition).
16. See, e.g., Robert Fitzgerald & Phoebe C. Ellsworth, Due Process vs. Crime Con-
trol: Death Qualification and Jury Attitudes, 8 L
AW & HUM. BEHAV. 31, 46 (1984); see
also J. Thomas Sullivan, The Demographic Dilemma in Death Qualification of Capital
Jurors, 49 W
AKE FOREST L. REV. 1107, 1133 (2014) (arguing that higher levels of
opposition to the death penalty most likely contribute to lower participation in
trials with capital charges).
17. See, e.g., Fitzgerald & Ellsworth, supra note 16, at 42–44. Robert Fitzgerald
and Phoebe Ellsworth found that death-qualified jurors are less likely to believe
that it is better to let some guilty parties go free than to convict the innocent. Id. at
42. They are also more likely to think that a non-testifying defendant is probably
guilty and generally favored harsher sentences. Id. at 42–44.
18. Lockhart v. McCree, 476 U.S. 162, 171 (1986).
19. See id. at 173 (“Having identified some of the more serious problems with
[the defendant’s] studies, . . . we will assume for purposes of this opinion that the
studies are both methodologically valid and adequate to establish that ‘death
qualification’ in fact produces juries somewhat more ‘conviction-prone’ than ‘non-
death-qualified’ juries. We hold, nonetheless, that the Constitution does not pro-
hibit the States from ‘death qualifying’ juries in capital cases.”).
20. Id. at 174 (citation omitted) (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979)).
No. 3] Death Qualification 819
does not violate the Sixth Amendment because they are not a
“distinctive group,” but rather an ideological one.
However, death qualification can occasionally result in juries
that substantially diverge from their communities’ values. The
case of Dzhokhar Tsarnaev, the Boston Marathon Bomber, is an
illustrative example. Though Massachusetts abolished the death
penalty under state law, Tsarnaev was convicted under federal
law for his attack which killed three people, and he was sen-
tenced to death.
21
However, a Boston Globe poll released shortly
after Tsarnaev’s trial found that only a third of Massachusetts
residents and only a quarter of Boston residents favor the death
penalty for egregious crimes.
22
This discrepancy between state
law and public opinion and federal charges led to an unusual
situation where the majority of potential jurors might be excluded
based on their unwillingness to impose the death penalty.
23
De-
spite death qualification excluding ideological adherents rather
than any specific demographic group, the fact that it likely re-
moves the majority of the community as a whole from serving
as jurors in some cases is uncomfortable.
II. P
OTENTIAL ORIGINALIST OBJECTIONS TO DEATH
QUALIFICATION
An originalist, however, is not concerned with policy argu-
ments or precedent in determining whether a constitutional
right exists. Instead, an originalist looks to the public meaning
of the document at the time of its enactment to determine the
rights guaranteed by constitutional text.
24
In determining the
21. See Katharine Q. Seelye, Dzhokhar Tsarnaev Given Death Penalty in Boston
Marathon Bombing, N.Y.
TIMES (May 15, 2015), https://nyti.ms/1d3IpCz [https://
perma.cc/TF7V-KUQM].
22. See Evan Allen, Few favor death for Dzhokhar Tsarnaev, poll finds, B
OS.
GLOBE (Apr. 26, 2015, 7:55 PM), https://www.bostonglobe.com/metro/2015/04/
26/globe-poll-shows-diminishing-support-for-death-penalty-for-tsarnaev/
S3GMhFlGj5VUkZrmLzh1iN/story.html [https://perma.cc/RKC4-TA8Z]. Interest-
ingly, even fewer supported the death penalty for Tsarnaev specifically than sup-
ported the death penalty in general. See id.
23. See Aliza Plener Cover, The Eighth Amendment’s Lost Jurors: Death Qualification
and Evolving Standards of Decency, 92 I
ND. L.J. 113, 115 (2016) (“Because Tsarnaev’s
federal capital case was tried, extraordinarily, in an abolitionist state, the impact
of death qualification was particularly noteworthy; yet death qualification shapes
verdicts in death-penalty states nationwide . . . .”).
24. See A
NTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND
THE
LAW 37–39 (1997). Here, Justice Scalia outlines his methodology and distin-
820 Harvard Journal of Law & Public Policy [Vol. 43
original meaning of the right to trial by jury, Judge Larsen
states that:
[I]f the jury provisions [of the Constitution] state a rule, de-
manding trial by a particular entity called a jury, then the
originalist’s task is to give effect to those terms as they were
understood in 1791. Put differently, the question for an
originalist is . . . what attributes comprised the jury trial of
1791? Those are retained because the text so demands.
25
In short, the originalist must try to determine the “attributes”
that defined jury trials in 1791.
To determine these attributes and interpret the Constitution,
Judge Larsen notes that an originalist must start with the text of
the document, searching it for clear rules or standards.
26
The
Sixth Amendment provides that:
In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusa-
tion; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
27
Unlike some provisions of the Constitution that provide clear
rules,
28
the term “impartial jury” and its related protections are
not apparent from the text.
In determining the protections guaranteed under the Sixth
Amendment right to an impartial jury, Justice Thomas wrote in
dissent in Peña-Rodriguez v. Colorado
29
that the right “is limited
to the protections that existed at common law when the
Amendment was ratified.”
30
In other words, Justice Thomas
asserts that the right to a trial by an impartial jury had a specific
guishes it from interpreting law based on the drafters’ intent, specifically noting,
“[w]hat I look for in the Constitution is precisely what I look for in a statute: the
original meaning of the text, not what the original draftsmen intended.” Id. at 38.
25. Larsen, supra note 2, at 992.
26. See id. at 989–90.
27. U.S. C
ONST. amend. VI (emphasis added).
28. See Larsen, supra note 2, at 988–89 (noting the age qualifications of con-
gressmen, senators, and Presidents as examples of rules in the Constitution as
opposed to other, less precise provisions).
29. 137 S. Ct. 855 (2017).
30. Id. at 872 (Thomas, J., dissenting).
No. 3] Death Qualification 821
legal meaning which governs its interpretation.
31
Justice Thomas
views the originalist interpretation of the term “impartial jury”
to be the contemporaneous legal meaning.
32
As evidence for his
assertion that the original public meaning of the Sixth
Amendment right to an impartial jury is derived from English
common law, Justice Thomas cites Justice Story, stating that
“‘the trial by jury in criminal cases’ protected by the Constitution
is the same ‘great privilege’ that was ‘a part of that admirable
common law’ of England.”
33
Thus, to determine the common
law at the time of ratification, Justice Thomas looks to commen-
tators on both English and American common law.
34
Justice Thomas also looks to state practice “[a]t the time of
the founding” as evidence of the Sixth Amendment’s original
public meaning.
35
This approach of looking to state practice for
evidence of the original public meaning of constitutional provi-
sions is consistent with the approach that Justice Scalia took in
District of Columbia v. Heller,
36
where he looked to state constitu-
tions and practices to discern the original public meaning of the
Second Amendment right to bear arms.
37
Because the plain
meaning of the Sixth Amendment’s text does not clearly an-
swer whether the right to an “impartial jury” provides a right
to defendants against the death qualification of juries, it is nec-
essary to consult the common law and state practices.
31. See Mike Rappaport, The Language of the Law and Pena-Rodriguez v. Colorado,
L
AW & LIBERTY (Mar. 14, 2017), https://www.lawliberty.org/2017/03/14/the-language-
of-the-law-and-pena-rodriguez-v-colorado/ [https://perma.cc/4KE7-X7R9].
32. Originalist scholars debate whether some passages of the Constitution
should be interpreted by their original public meaning (that is, what an average
person would understand a passage to mean) or by their original legal meaning
(that is, what a lawyer at the time of ratification would understand a passage to
mean). See generally John O. McGinnis & Michael B. Rappaport, The Constitution
and the Language of the Law, 59
WM. & MARY L. REV. 1321 (2018). This Note as-
sumes that Justice Thomas’s method is correct, and to the extent that lay and legal
meaning diverge in interpreting the Sixth Amendment, the original legal meaning
is the correct originalist interpretation.
33. Peña-Rodriguez, 137 S. Ct. at 872 (quoting 3
JOSEPH STORY, COMMENTARIES ON
THE
CONSTITUTION OF THE UNITED STATES § 1773, at 652–53 (1833)).
34. See id. (noting William Blackstone’s, Matthew Bacon’s, Edward Coke’s, and
Thomas Cooley’s comments on the meaning of impartiality).
35. Id.
36. 554 U.S. 570 (2008).
37. Id. at 584–86 (noting the constitutions of nine states and their related practices
as evidence of the meaning of the term “bear arms”).
822 Harvard Journal of Law & Public Policy [Vol. 43
There are several potential originalist attacks on death quali-
fication that must be assessed to determine whether the prac-
tice is constitutional. First, because death qualification involves
the removal of jurors based on their convictions, it changes the
potential pool of jurors.
38
If such exclusion changes the compo-
sition of the jury such that it is no longer impartial under the
original meaning of the Sixth Amendment, then the practice is
unconstitutional. Second, death qualification inherently pre-
vents juries from judging law by removing jurors who oppose
it.
39
If the right to a trial by jury in criminal cases provides a ro-
bust right to defendants to have their respective jurors judge
the law as well as the evidence, then death qualification cannot
stand. Third, death qualification provides the court and prose-
cution a means to shape juries for which there was no analogue
at common law or in state practice.
40
For death qualification to
be legitimate under an originalist constitutional assessment, it
must be able to survive these three objections. And it can.
A. Objection One: The Right to an Impartial Jury
The first objection is the most easily dismissed from an
originalist perspective. In his dissent in Lockhart, Justice Marshall
was persuaded by the literature suggesting that death-qualified
juries are more prone to convict, stating that he believed the
defendant had “succeeded in proving that his trial by a jury so
constituted violated his right to an impartial jury.”
41
This litera-
ture gives a reason to question death qualification as a policy
choice. However, the defendant in Lockhart did not show that
his jury was impartial in any sense that would violate the
meaning of an impartial jury in 1791.
38. See Sullivan, supra note 16, at 1133.
39. See Larsen, supra note 2, at 968–69 (arguing that the “Founders’ jury . . . had
the right to judge the law” in addition to their right to determine a defendant’s
guilt or innocence based on evidence).
40. See Witherspoon v. Illinois, 391 U.S. 510, 522 n.21 (1968) (clarifying that
death qualification is permissible when a juror’s “attitude toward the death penalty
would prevent them from making an impartial decision as to the defendant’s guilt”).
41. Lockhart v. McCree, 476 U.S. 162, 193 (1986) (Marshall, J., dissenting). How-
ever, Justice Marshall went on to concede that no “individual on the jury that
convicted [the defendant] fell short of the constitutional standard for impartiality”
but instead embraced the defendant’s argument “that, by systematically exclud-
ing a class of potential jurors less prone than the population at large to vote for
conviction, the State gave itself an unconstitutional advantage at his trial.” Id.
No. 3] Death Qualification 823
There is substantial evidence of the original public meaning
of an impartial jury as guaranteed by the Sixth Amendment
that contradicts Justice Marshall’s assessment. William Blackstone
noted that partiality was one of the four for-cause challenges
that either party could use against potential jurors.
42
He wrote:
Jurors may be challenged propter affectum, for suspicion of
bias or partiality. . . . A principal challenge is such, where the
cause assigned carries with it prima facie evident marks of
suspicion either of malice or favour: as, that a juror is of kin
to either party within the ninth degree; . . . that he has an in-
terest in the cause; that there is an action depending between
him and the party; that he has taken money for his verdict;
that he has formerly been a juror in the same cause; that he
is the party’s master, servant, counsellor, steward or attor-
ney, or of the same society or corporation with him . . . .
43
Blackstone further notes that out of “caution against all par-
tiality and bias,” a whole array of jurors would be “quash[ed]”
if the officer or sheriff involved in gathering the array were
“suspected to be other than indifferent.”
44
Although Blackstone
wrote here about selection of civil juries, he notes that the same
criteria were used for selecting and challenging jurors in crimi-
nal cases.
45
Blackstone’s definition of partiality is quite narrow.
To be disqualified as impartial, a juror must either have a fa-
milial or other close personal association with the defendant or,
alternatively, be financially interested in the case. For instance,
a juror who took bribes “for his verdict” was disqualified as
partial. These narrow criteria stand in contrast to the sources of
impartiality that the defendant proposed in Lockhart, which in-
volved ideological predisposition rather than any direct, per-
sonal bias.
46
Early post-revolutionary American case law also confirms
that the original meaning of “impartiality” was narrow, though
the case law indicates that a juror’s public prejudging of a case
42. 3 WILLIAM BLACKSTONE, COMMENTARIES *361–64.
43. Id. at
*363 (footnote omitted).
44. Id. at *365.
45. See 4 B
LACKSTONE, supra note 42, at *346 (“Challenges may . . . be made,
either on the part of the king, or on that of the prisoner . . . for the very same rea-
sons that they may be made in civil causes.”).
46. See Lockhart, 476 U.S. at 177 (rejecting the defendant’s argument that the jury
“lacked impartiality because the absence of [those unwilling to impose the death
penalty] ‘slanted’ the jury in favor of conviction”).
824 Harvard Journal of Law & Public Policy [Vol. 43
might also render him partial. In Peña-Rodriguez, Justice Thomas
cited to Pettis v. Warren,
47
which echoed Blackstone’s view that
impartial jurors must “have no interest of their own affected,
and no personal bias, or pre-possession, in favor [of] or against
either party.”
48
In Goodright v. M’Causland,
49
the Supreme Court
of Pennsylvania found that a juror’s small bet on the outcome
of a case was insufficient evidence of partiality to overturn a
verdict, as was the fact that jurors had eaten with (and possibly
at the expense of) one of the parties.
50
And in United States v.
Worrall,
51
a federal court listed situations that could “prevent a
federal officer” from being “impartial” in the “performance of
his duty.”
52
Disqualifying relationships between an officer and
a defendant included “assault and battery [against the officer];
or the [officer’s] recovery of a debt, as well as the offer of a
bribe.”
53
Regarding prejudging cases, however, when a defend-
ant in a high-profile murder case motioned for the right to ask
potential jurors whether they had publicly prejudged his case,
the sitting judges on the North Carolina Superior Courts of
Law and Equity agreed that “there [was] no precedent of this
kind,” though they ultimately permitted it.
54
Similarly, a federal
court in Pennsylvania granted a new trial when a juror had
publicly declared before the trial that the defendant should be
executed.
55
Thus, although the original meaning of an “impar-
tial jury” as seen in early American case law may have been
slightly broader than Blackstone’s criteria, it remained very
narrow, only potentially adding public prejudgment of a case.
Moreover, the history, both in England and colonial America,
confirms a narrow definition of partiality. The right to a jury
trial derived from Magna Carta’s guarantee to trial by a jury of
47. 1 Kirby 426 (Conn. Super. Ct. 1788).
48. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 872 (2017) (Thomas, J., dissent-
ing) (alteration in original) (quoting Pettis, 1 Kirby at 427) (internal quotation
marks omitted).
49. 1 Yeates 372 (Pa. 1794).
50. Id. at 378.
51. 28 F. Cas. 774 (C.C.D. Pa. 1798) (No. 16,766).
52. Id. at 777.
53. Id.
54. State v. Norris, 2 N.C. (1 Hayw.) 429, 430 (N.C. Super. Ct. Law & Eq. 1796).
55. See United States v. Fries, 9 F. Cas. 826, 917–18, 921–23 (C.C.D. Pa. 1799) (No.
5,126).
No. 3] Death Qualification 825
one’s peers.
56
The definition of “peers” was broad. Professor
John Baker notes that “[p]eers . . . were of two classes only:
temporal lords of Parliament, and commoners.”
57
The ancient
right to a trial by one’s peers, then, did not historically guaran-
tee a cross section of society or a group with which a defendant
might have particular affinity. In late eighteenth-century England,
there were, in fact, property requirements for jurors: they had
to own land that produced at least ten pounds of income per
year.
58
However, this did not leave only the wealthy to serve.
Jurors often derived from “[t]he occupations of farmer, artisan,
and tradesman,” and “[t]he jury was . . . neither aristocratic nor
democratic.”
59
Jurors came from a wide socioeconomic spec-
trum, but juries in late eighteenth-century England were not a
true cross section of society.
In colonial America, however, jurors better reflected their
communities and had much in common with defendants. As
Professor Bruce Mann writes of jurors in colonial Connecticut,
“In background, experiences, and outlook [the jurors] were
very much like the litigants whose disputes they determined,
and not very different from the judges who oversaw them.”
60
Indeed, juries often knew the parties personally or by reputation
as “they were neighbors or from nearby towns.”
61
Inevitably,
jurors would know of the alleged crimes and have preexisting
notions of the defendants, which are biases that modern crimi-
nal procedure seeks to avoid. This familiarity suggests that
impartiality from an originalist’s perspective is quite narrow.
Jurors in 1791 were far less insulated and brought far more per-
56. See J.H. Baker, Criminal Courts and Procedure at Common Law 1550–1800, in
C
RIME IN ENGLAND: 1550–1800, at 15, 23 (J.S. Cockburn ed., 1977) (“Nearly all
lawyers in our period traced the right to trial by jury to chapter 29 of Magna Carta.”).
57. Id.
58. John H. Langbein, The English Criminal Trial Jury on the Eve of the French
Revolution, in T
HE TRIAL JURY IN ENGLAND, FRANCE, GERMANY: 1700–1900, at 13,
25 (Antonio Padoa Schioppa ed., 1987).
59. Id.
60. B
RUCE H. MANN, NEIGHBORS AND STRANGERS: LAW AND COMMUNITY IN
EARLY CONNECTICUT 71 (G. Edward White ed., 1987).
61. Id. at 71. Professor Mann provides an illustrative example of the challenges
that well-known parties faced in litigation by detailing the suit between the
Wheeler and Winthrop families in Connecticut. “The parties were prominent,
their differences well known, their antipathy implacable. Jurors, who were drawn
from the county, could not help but know of the litigants and the context of the
lawsuit.” Id. at 72.
826 Harvard Journal of Law & Public Policy [Vol. 43
sonal knowledge than society would prefer today. As such,
broad assertions of impartiality based on filtering out those of
certain views are not supported by the original meaning of the
Sixth Amendment.
B. Objection Two: Judging the Jury’s Role
The second potential originalist objection is the most chal-
lenging to death qualification. Ben Cohen and Robert Smith
have challenged the constitutionality of death qualification on
originalist grounds.
62
Central to their analysis is the argument
that juries in 1791 judged both law and fact.
63
However, Cohen
and Smith overstate the scholarly certainty on this issue. First,
although juries judged law in some states in the colonial and
early American period, in others they were clearly instructed
not to do so. Second, even where juries did judge law as well as
fact, it seems that they were exercising a power rather than ful-
filling a duty. Indeed, based on evidence from the Judiciary Act
of 1789
64
and the common law, the original public meaning of
the Sixth Amendment did not grant juries the right to judge
law, even if they had the power to acquit against the evidence.
The implications for the constitutionality of death qualifica-
tion are clear. The ability of juries to judge law had two aspects:
first, juries often interpreted the law, and, thus, lawyers could
argue for their preferred legal interpretations at trial.
65
The sec-
ond aspect of jurors judging the law is the ability to pass judg-
ment on the law, declining to apply it if they thought it was
unjust.
66
If jurors have the right to judge law in this second
sense, then it is only a small step to say that it is unconstitu-
tional to exclude a juror because she cannot uphold the law.
Indeed, if jurors who cannot impose a given law are excluded
outright, then it is not possible for juries to subsequently judge
the law, unless the jury has a change of heart on the law in
question during the trial and deliberations and only then de-
cide to judge the law.
62. See Cohen & Smith, supra note 3.
63. See id. at 87 (“The Framers understood criminal petit juries to be responsible
for making determinations of both fact and law.”).
64. Ch. 20, 1 Stat. 73.
65. See William E. Nelson, The Lawfinding Power of Colonial American Juries, 71
O
HIO ST. L.J. 1003, 1005 (2010).
66. See Cohen & Smith, supra note 3, at 118–19.
No. 3] Death Qualification 827
To determine whether the right to judge law is included
within the original public meaning of the constitutional right to
a jury in criminal trials, one must ask whether it was one of the
“protections that existed at common law” when the Bill of
Rights was ratified,
67
and whether state practice in 1791 pro-
vides evidence for such a right. This assessment will begin by
reviewing the common law.
Two leading English commentators, Edward Coke and
Blackstone, support the proposition that juries determined fact
and judges determined law. For example, Coke stated, “The
most usual triall of matters of fact is by 12 . . . men; for ad quæs-
tionem facti non respondent judices: and matters in law the judges
ought to decide and discusse; for ad quæstionem juris non re-
spondent juratores.”
68
Professor James Bradley Thayer infers
from this passage that “[i]n a sense [it] emphasizes the limita-
tions of the jury,—as saying that it is only fact which they are to
decide.”
69
Professor Thayer restates his understanding of
Coke’s view on the issue, saying:
In general, issues of fact, and only issues of fact, are to be
tried by jury; when they are so tried, the jury and not the
court are to find the facts, and the court and not the jury is to
give the rule of law; the jury are not to refer the evidence to
the judge and ask his judgment upon that, but are to find the
facts which the evidence tends to establish, and may only
ask the court for their judgment upon these. That this de-
termination by the jury involves a process of reasoning, of
inference and judgment, makes no difference . . . .
70
Professor Thayer’s summary of Coke’s view holds two im-
plications. First, Coke clearly believed that the jury’s sole do-
main was fact rather than law. Second, Thayer firmly disputed
the notion that applying the law to facts was the same as judg-
ing law. Juries, of course, must apply the law, but that does not
67. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 872 (2017) (Thomas, J., dissent-
ing) (explaining how to adduce whether the Constitution provides a jury-related
right to defendants).
68. E
DWARDO COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND
§ 234, at 155b (Francis Hargrave & Charles Butler eds., London, Luke Hunsard &
Sons 16th ed. 1809). Coke’s Latin maxim translates, “Judges do not answer ques-
tions of fact; juries do not answer questions of law.” T
HE DICTIONARY OF LEGAL
QUOTATIONS 139 n.2 (James William Norton-Kyshe ed., 1904).
69. James B. Thayer, “Law and Fact” in Jury Trials, 4 H
ARV. L. REV. 147, 149 (1890).
70. Id. at 150.
828 Harvard Journal of Law & Public Policy [Vol. 43
make them masters over it.
71
As Professor Thayer elucidates,
Coke’s commentary strongly suggests that juries did not have
the right to judge law at common law.
Though less explicit on the issue, Blackstone seems to make
the same delineation as Coke. Indeed, Blackstone refers to jurors
explicitly as “judges of fact” without mentioning any ability to
judge law.
72
To be sure, this exclusion is not dispositive, but it
is negative evidence of Blackstone’s views of juries as finders of
fact rather than judges of law. Furthermore, Blackstone’s re-
counting of the jurors’ oath in criminal cases is telling. He
writes that jurors were “sworn ‘well and truly to try, and true
deliverance make, between our sovereign lord the king, and
the prisoner whom they have in charge; and a true verdict to
give, according to their evidence.’”
73
Thus, Blackstone notes the
jury’s role in finding fact and weighing evidence rather than
judging law. In discussing criminal verdicts, Blackstone pro-
vides no evidence that juries were to judge law. Instead,
Blackstone states that juries had the option to rely on the judge
to help them render a special verdict in cases “where they doubt
the matter of law.”
74
This consultation of the court is by the
jury’s choice, and the jury maintains “an unquestionable right
of determining upon all the circumstances, and finding a gen-
eral verdict.”
75
However, Blackstone’s comment on jurors’ fears
of violating the law through their verdict is telling. He states
that juries might submit a special verdict to avoid risking “a
breach of their oaths” through a “verdict [that is] notoriously
wrong.”
76
If Blackstone believed that juries had the right to
judge the law as well as the evidence, he would not expect
them to fear being wrong on points of law; instead, jurors
71. Professor Thayer’s personal understanding of the delineation between law
and fact was even more aggressive. Indeed, Professor Thayer argued that judges
could even encroach on the judging of fact to some degree. He noted that “the
allotment of fact to the jury, even in the strict sense of fact, is not exact,” instead
pointing out that judges would sometimes judge questions of fact “by calling
them questions of law.” Id. at 159. For instance, Professor Thayer points out that
judges maintained the right to determine “the construction of writing” by using
“historical and administrative” justifications despite the construal of documents
not actually being a matter of law. Id. at 160.
72. 3
BLACKSTONE, supra note 42, at *361.
73. 4
BLACKSTONE, supra note 42, at *348 (emphasis added).
74. Id. at *354.
75. Id.
76. Id.
No. 3] Death Qualification 829
would have been solely concerned with what they personally
thought was fair to the defendant rather than violating their
society’s laws. Put another way, if the proper role of Blackstone’s
jury were to judge law as well as fact, the jury’s judgment, by
definition, could not be “notoriously wrong.”
77
Instead, in this
hypothetical jury common law system, the law would largely
be made via jury interpretation. However, Blackstone clearly
rejects this hypothetical system. Blackstone’s commentaries,
like those of Coke, strongly support the proposition that juries
did not have a right to judge law.
In practice, it was very rare for juries to acquit against the ev-
idence in England during the late eighteenth century, and most
cases where juries acquitted against the evidence were political
offenses.
78
Professor Langbein’s commentary on English jury
instructions affirms Blackstone: “The judge’s opinion upon a
matter of law was in theory binding upon the jury.”
79
However,
he points out that in most criminal cases the law was not com-
plicated, even though determining the facts might be.
80
As
such, Professor Langbein “doubt[s] that the jury was much in-
structed in routine cases.”
81
Thus, the common law as well as
contemporary practice in England shows that there was no
right there for juries to judge law as well as fact.
The evidence of original public meaning from state practice
in 1791 is less clear on whether juries have the right to judge
law, but the stark differences among state practices suggests
that the original public meaning of the Sixth Amendment did
not guarantee a constitutional right for juries to judge law as
well as fact. Legal scholars debate whether juries in early
America judged law in addition to fact, and Judge Larsen ar-
gues it is “the dominant scholarly position” that juries had a
77. Id.
78. See Langbein, supra note 58, at 36 (“If the jury persisted in returning a verdict
contrary to the judge’s wishes, it mattered greatly whether the verdict was one of
conviction or acquittal. . . . As a practical matter . . . acquittal was the important
sphere of potential judge/jury disagreement. Even there, however, it is hard to
detect instances of disagreement about acquittal in the later eighteenth century,
apart from a few political offenses, of which seditious libel was the most important.”).
79. Id. at 35.
80. Id.
81. Id.
830 Harvard Journal of Law & Public Policy [Vol. 43
right to judge law.
82
Even the dissenting scholars acknowledge
that they are arguing against “the conventional wisdom” that
“juries acquired the right to determine the law as well as the
facts in colonial times.”
83
Cohen and Smith cite Professors Akhil Amar and William
Nelson, and leading early American lawyers, such as John
Adams, to support the proposition that early American juries
were entitled to judge law as well as fact.
84
They argue that
what they view as the unconstitutional removal of juries’ right
to judge law “is of particular consequence in cases involving
the ‘death-qualification’ of jurors.”
85
Such an assertion that the
modern arrangement is an unconstitutional shift from the orig-
inal public meaning in 1791 is not without evidence. Indeed,
Professor Amar argues:
Alongside their right and power to acquit against the evi-
dence, eighteenth-century jurors also claimed the right and
power to consider legal as well as factual issues—to judge
both law and fact ‘complicately’—when rendering any gen-
eral verdict. Founding-era judges might give their legal
opinions to the jury, but so might the attorneys in a case,
and the jurors could decide for themselves what the law
meant in the process of applying it to the facts at hand in a
general verdict of guilty or not guilty . . . . Jurors today no
longer retain this right to interpret the law, but at the Founding,
America’s leading lawyers and statesmen commonly accepted
it.
86
According to Professor Amar, then, leading lawyers and even
various judges sometimes asserted that juries had the right to
judge both law and fact.
87
However, the dissenting scholars’ arguments are fairly mod-
est and not necessarily inconsistent with Professor Amar’s re-
counting of history. They do not argue that juries lacked the
right to judge law in all colonies or at all times. Rather, they
82. See Larsen, supra note 2, at 968 & n.47. Judge Larsen does, however, note that
there is substantial scholarly disagreement on the topic. Id. at 968 n.47.
83. Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the
Law in Colonial America, 89 J.
CRIM. L. & CRIMINOLOGY 111, 116 (1998).
84. See Cohen & Smith, supra note 3, at 87–88, 93–94, 99–100.
85. Id. at 88.
86. A
KHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 238 (2005).
87. Id. at 581 n.73 (listing “Jefferson, Adams, Wilson, Iredell, and Kent, to name
just a few”).
No. 3] Death Qualification 831
argue that, although juries may have determined law as well as
fact in some colonies during some periods of time, this was far
from a universal right in colonial and early America.
88
With
state practices differing widely, it is incorrect to say that the
Sixth Amendment includes a right for juries to judge law as
well as fact in criminal cases.
The notion that juries could determine law as well as fact
seems to have been a colonial American invention. Indeed, as
Professor Stanton Krauss notes, “[n]o judge in England is
known ever to have given . . . a charge” that encouraged crimi-
nal juries to find law in addition to fact.
89
The final establish-
ment of judges as the undisputed masters of law and juries
confined to finding fact would not come until 1895, when the
Supreme Court settled the issue in Sparf v. United States.
90
However, this late uniformity on the issue does not prove that
there was inverse uniformity in the past. Instead, the most
comprehensive studies of court records suggest that colonial
and early state practices were sharply divided and continuously
evolving.
91
Furthermore, although Cohen and Smith’s sources
tend to emphasize the perspectives of leading lawyers and the
opinions of judges, it is helpful to examine the actual court rec-
ords to look for positive or negative evidence of such a right.
92
88. See, e.g., Krauss, supra note 83, at 121–22.
89. Id. at 115–16. Professor Krauss contrasts English trial histories with an early
eighteenth-century American trial for treason in which Justice Duvall, presiding
in a circuit court, advised the jury that juries “have a right, in all criminal cases, to
decide on the law and the facts.” Id. at 113 (quoting United States v. Hodges, 26 F.
Cas. 332, 334 (C.C.D. Md. 1815) (No. 15,374)) (internal quotation marks omitted).
However, Professor Krauss further notes that another judge on the trial disagreed
with this instruction, saying, “The opinion which [Justice Duvall] has just deliv-
ered . . . is not, and I thank God for it, the law of this land.” Id. at 113 (alteration in
original) (quoting Hodges, 26 F. Cas. at 335) (internal quotation marks omitted).
90. 156 U.S. 51, 78 (1895) (“[U]nder the Constitution of the United States, juries
in criminal cases have not the right to decide any question of law, and, . . . in ren-
dering a general verdict, their duty and their oath require them to apply to the
facts, as they find them, the law given to them by the court.”); see Cohen & Smith,
supra note 3, at 100–01; cf. Albert W. Alschuler & Andrew G. Deiss, A Brief History
of the Criminal Jury in the United States, 61 U.
CHI. L. REV. 867, 911 (1994) (“Today
the constitutions of three states—Georgia, Indiana, and Maryland—provide that
jurors shall judge questions of law as well as fact. In all three states, however,
judicial decisions have essentially nullified the constitutional provisions.” (foot-
note omitted)).
91. See Krauss, supra note 83; Nelson, supra note 65.
92. See Edith Guild Henderson, The Background of the Seventh Amendment, 80
H
ARV. L. REV. 289, 321 (1966) (“In assessing the eighteenth-century practice it is
832 Harvard Journal of Law & Public Policy [Vol. 43
Professors Nelson and Krauss are two leading scholars who
argue that criminal juries in colonial America did not have a
universal right to judge both law and fact. Both scholars have
extensively reviewed colonial court records and have examined
the statements of jurists and lawyers on the topic. Professor
Nelson’s view on the matter is particularly interesting: for over
thirty years, he was a leading proponent of the theory that juries
did have the right to judge law.
93
However, after surveying co-
lonial court records, Professor Nelson changed his position,
writing in 2010 that “the story of the jury’s power is far more
complex than I had thought before. If the question is simply
whether colonial juries had the power to find law, the answer is
sometimes yes and sometimes no.”
94
Professor Krauss reaches
the same conclusion, though noting a large degree of uncer-
tainty arising from the relatively scarce historical colonial court
records.
95
Professor Krauss also helpfully notes that some confusion on
this question may come from failing to distinguish the criminal
jury’s rights from its powers. Although criminal juries had the
power to acquit defendants against the evidence, Professor
Krauss points out that “this does not mean that juries have a
right to decide criminal cases without regard to the facts; it just
means that they have the power to do so, and that in some cases
that power is absolute.”
96
Professor Krauss is correct that crim-
inal juries had the power to render general verdicts of acquittal,
which implicitly gave them the power, if not the right, to judge
law if they disagreed with imposing it in a particular case.
97
However, although no scholars question that juries had the
necessary (as in every legal-historical investigation) to consider both what courts
and laymen said about it and what the courts really did. What is said about criminal
juries, even by judges, has changed a great deal in some American jurisdictions.
What is really done in criminal cases has changed hardly at all since 1790, but it is
more complex than either the modern or the older descriptions indicate.”).
93. See, e.g., William E. Nelson, The Eighteenth-Century Background of John Marshall’s
Constitutional Jurisprudence, 76 M
ICH. L. REV. 893, 904–17 (1978).
94. Nelson, supra note 65,
at 1003. However, Professor Nelson argues that the
question of juries’ law-finding power is too narrow and that, instead, scholars
should assess how much power localities held in deciding the law compared to
the power held by “central political authorities.” Id. at 1003–04.
95. Krauss, supra note 83, at 124–25.
96. Id. at 114 (emphasis added).
97. See, e.g., Henderson, supra note 92, at 326–27 (“[T]he jury’s right ‘to decide the
law’ or to give an uncontrolled general verdict was primarily a right to acquit.”).
No. 3] Death Qualification 833
power to acquit against the evidence and, therefore, implicitly to
judge the law or its application, it seems that in some jurisdic-
tions there was no right to do so, and the right to find law was
reserved for judges.
Both Professors Nelson and Krauss acknowledge that there is a
shortage of evidence given the scarcity of colonial court records.
Indeed, after reviewing the records of each colony, Professor
Krauss concludes:
The truth is that . . . we just don’t know whether, when, or
where colonial criminal juries had the authority to judge the
law. It seems reasonably clear that they had no such right in
mid-eighteenth century Georgia, seventeenth and (at least)
early eighteenth-century Maryland, and in Massachusetts on
the eve of Independence. On the other hand . . . criminal juries
were acknowledged to have some form of law-finding right
in Rhode Island throughout the colonial period. The rest (to
varying degrees) is a mystery.
98
Professor Nelson disagrees with Professor Krauss on some par-
ticular colonies
99
but arrives at the same general conclusions.
Indeed, his more recent research fills in some of Professor
Krauss’s gaps. Professor Nelson states, “On the issue of the
lawfinding power of colonial juries, the score is roughly
tied . . . juries possessed ultimate power over the law in New
England and Virginia, but not in the Carolinas, New York, and
Pennsylvania.”
100
He further clarifies, “[I]t seems clear that the
Constitution of 1787, as its framers intended it to do, created a
national government that gradually gained increasing power to
98. Krauss, supra note 83, at 212.
99. As their statements quoted in this paragraph show, Professors Krauss and
Nelson arrive at different conclusions regarding the jury’s right to judge law in
Massachusetts. Professor Nelson, a leading authority on colonial Massachusetts
legal history, probably has the better of the disagreement. However, Professor
Krauss does effectively point out that there was disagreement among Massachusetts
lawyers on the question. Cohen and Smith, as well as Professor Nelson, cite John
Adams on the topic because he argued that juries had a right to judge both law
and fact. See Cohen & Smith, supra note 3, at 99–100; Nelson, supra note 65, at 1005.
However, Professor Krauss notes that Josiah Quincy, John Adams’s co-counsel in
the defense of the British soldiers tried in relation to the Boston Massacre, told the
jury his interpretation of the law, but “he also admonished the jurors that they
were bound to follow the law they would receive from the Bench. Though [the
judge] told the jurors that Quincy was right about their duty, neither he nor [the
other judges] interfered with Quincy or . . . Adams, when they argued the law to
the jury.” Krauss, supra note 83, at 128.
100. Nelson, supra note 65, at 1028.
834 Harvard Journal of Law & Public Policy [Vol. 43
impose national law on its recalcitrant peripheries.”
101
With the
states sharply divided in practice in 1791, it is wrong to con-
clude that the original public meaning of criminal juries guar-
anteed that they had a right to judge the law, though it would
certainly include the power for criminal juries to acquit a de-
fendant without judges reviewing their reasoning.
Even Professor Amar, a major proponent of the position that
juries judged law as well as fact, does not contend that this
practice rose to the level of a constitutional right. After review-
ing the evidence in favor of the right of juries to review law
(particularly laws that jurors believe to be unconstitutional),
Professor Amar concedes, “I do not mean to suggest that I am
wholly convinced. But the mere fact of [the argument’s] strong
plausibility shows how strikingly powerful the jury might have
become had post-1800 history unfolded differently.”
102
Professor
Amar also points out the difficulty of finding a right of juries to
judge law based on the bare-bones text of the Constitution on
juries, combined with the Judiciary Act of 1789’s focus on the
jury’s role as factfinder in both civil and criminal cases. Professor
Amar notes:
Jurors could point to no strong statements in constitutional
text or the framework Judiciary Act of 1789 that forbade this
shrinkage [of juries’ lawfinding power]. If anything, the
Seventh Amendment highlighted the civil jury’s role in de-
ciding issues of “fact,” and the Judiciary Act similarly
stressed, in both criminal and civil cases, that the “trial of is-
sues [of] fact” in all common-law cases would be “by jury.”
103
Indeed, the Judiciary Act of 1789 repeatedly states that issues
of fact shall be decided by jury but makes no mention of juries
judging law.
104
Thus, Professor Amar, based on the text of the
Constitution and the Judiciary Act of 1789, declines to argue
that the original public meaning of the Sixth Amendment in-
cluded a right for criminal juries to judge law.
101. Id. at 1029.
102. A
KHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION
103 (1998).
103. A
MAR, supra note 86, at 241 (alteration in original) (quoting Judiciary Act of
1789, ch. 20, §§ 9, 12, 13, 1 Stat. 73, 77, 80–81).
104. See §§ 9, 12, 13, 1 Stat. 73, 77, 80–81.
No. 3] Death Qualification 835
C. Objection Three: Quaker Oaths and Pious Perjurers
Cohen and Smith point to early trials where Quakers were
excused from juries to argue a third potential originalist objec-
tion against death qualification—that the process gives the
court more control over jury selection than was provided at
common law or by state practice in 1791.
105
However, the ex-
amples of the trials that Cohen and Smith cite do not support
their argument. Instead, they demonstrate that the state held
considerable control over the jury selection process at common
law and in early American history. Moreover, Quakers’ rela-
tionship with English and early American juries affirms the
earlier argument that jurors had a duty to uphold the law ra-
ther than a right to judge it.
As Cohen and Smith point out, there was no explicit death
qualification: after the jury pool convened, the potential jurors
were sworn and then joined the petit jury unless challenged.
106
Yet, the fact that jurors were sworn to uphold the law challenges
the notion that death qualification is contrary to common law
controls, as this swearing may have served as a form of exclud-
ing those who would be unwilling to impose the law. Jurors
were sworn to uphold the law, but, as previously discussed,
both in England and America they held the power to acquit
against the evidence. Professor Baker notes that such acquittals
did sometimes occur in England in the sixteenth through eight-
eenth centuries, stating that jurors “could mitigate the rigours
of the penal system by ‘pious perjury’—the merciful use of
‘partial verdicts’ or false acquittals contrary to the evidence.”
107
The nomenclature for these acquittals seems to undercut the
proposition that juries had a right to judge the law. If jurors
were forced to “perjure” themselves when they engaged in nul-
lification, it logically follows that making jurors swear that they
could, in fact, uphold the law (including in death penalty cases)
was permissible at common law.
Furthermore, the account of Justice Story and the excluded
Quaker jurors is informative on the question of state control
over jury selection in early America. Cohen and Smith discuss
at length two cases in which Quakers were excluded from juries
105. See Cohen & Smith, supra note 3, at 91–96.
106. See id. at 92.
107. Baker, supra note 56, at 23.
836 Harvard Journal of Law & Public Policy [Vol. 43
because of their opposition to the death penalty.
108
From these
accounts, Cohen and Smith derive a number of inferences
based on incorrect historical assumptions. The first case is United
States v. Cornell,
109
in which Justice Story, sitting as a circuit
judge, upheld a federal district court’s exclusion of two Quakers
who informed the court that they could not impose capital
punishment in the case.
110
Arguing that Justice Story erred in
removing the Quakers from the jury, Cohen and Smith point
out that he did not cite precedent in upholding the removal.
111
Although this is true, Justice Story did not cite precedent in his
orders on most of the other nine objections in the case, and he
did invoke general judicial practice in New England on this
issue.
112
Moreover, it seems that the defendant’s objection in the case
was not to the exclusion of jurors, but rather to the lower
court’s failure to make the Quakers swear that the reason they
gave for seeking removal was true. Indeed, Justice Story states,
“The objection . . . affects to place some reliance upon the fact,
that the jurors were not sworn or affirmed to the truth of their
statements.”
113
Justice Story agreed that the treatise the defend-
ant cited supported such swearing.
114
However, he declined to
sustain the objection based on common law in New England,
which would not require the sworn attestation of an undisputed
fact.
115
Considering the context of the objection, the defendant
was likely not objecting to death qualification itself: instead, he
sought to use the Quakers’ inability to swear oaths to reverse
his conviction on procedural grounds. In other words, the rea-
son that the Quakers gave for seeking excusal was fine, but it
was a violation of procedure that they could not swear that they
were unable to implement the death penalty. Furthermore, that
108. See Cohen & Smith, supra note 3, at 93–96.
109. 25 F. Cas. 650 (C.C.D.R.I. 1820) (No. 14,868).
110. Id. at 655–56.
111. See Cohen & Smith, supra note 3, at 93.
112. See Cornell, F. Cas. at 656 (“I may add, that in all the courts of New-
England, where I have seen practice, the course pursued on this occasion, has
been uniformly adopted.”). However, it is unclear if the practice to which Justice
Story refers in alluding to New England practice is death-qualifying jurors or
another contested aspect of the relevant criminal procedure.
113. Id.
114. Id.
115. Id.
No. 3] Death Qualification 837
Justice Story felt the objection could “be disposed of in a very
few words” suggests that this was not a matter of first impres-
sion for him.
116
Instead, Justice Story’s refusal “to compel [a
Quaker] to decide against his conscience, or to commit a sol-
emn perjury” is consistent with the notion that jurors did not
have a right to find against the evidence based on their convic-
tions; they simply had the power to acquit against the evidence.
117
The second case is Commonwealth v. Lesher,
118
which Cohen
and Smith identify as the “origin[] of death-qualifications.”
119
Cohen and Smith point to this case, where the Supreme Court
of Pennsylvania upheld the for-cause strike of a juror based on
his religious convictions against imposing the death penalty, as
the first recorded death qualification of a jury in the United
States.
120
However, although the court noted that this was the
first time that it was imposing a for-cause strike, the history
that the court recounts regarding such strikes strongly weighs
against Cohen and Smith’s argument. Explaining the absence
of previous for-cause strikes of anti-death-penalty objectors in
Pennsylvania, the Court wrote:
Besides, the sheriff, until the year 1805, had the nomination
of jurors; and it is not likely that he would summon, to serve
on capital trials, those whose conscientious persuasions
were known to be abhorrent from such service. We may eas-
ily discover wherefore this right of challenge, though always
existing in the law, has been so rarely called into use.
121
Thus, the court rejected the possibility that those who could
not impose the death penalty had a right to serve on juries.
And the issue was only novel because the sheriff had previously
116. Id. at 655.
117. Id.
118. 17 Serg. & Rawle 155 (Pa. 1828).
119. Cohen & Smith, supra note 3, at 94.
120. See id. at 94–95. However, at least one successful for-cause challenge to a
juror who could not impose the death penalty occurred several years earlier in
1824 in Washington, D.C. See United States v. Ware, 28 F. Cas. 404 (C.C.D.D.C.
1824) (No. 16,641). In that case, the ruling was very simple, which could imply
that this type of for-cause strike may not have been uncommon in some regions.
Indeed, the opinion notes, “Mr. Taylor, for the United States . . . then challenged
[the conscientious objectors] for cause, alleging that they did not stand indiffer-
ent,” and the Court simply stated “it was a good cause of challenge, and the jurors
were set aside.” Id. at 404.
121. Lesher, 17 Serg. & Rawle at 159.
838 Harvard Journal of Law & Public Policy [Vol. 43
excluded such jurors before they reached the panel. The court
did not find this control over jury selection to be problematic.
Furthermore, Cohen and Smith’s argument relies on a specu-
lative and unsound assumption about the Quaker community’s
beliefs regarding capital punishment in late eighteenth- and
early nineteenth-century America. Cohen and Smith assert that
Pennsylvanian Quakers in the early 1800s “largely opposed the
death penalty and lived in the state in sufficient numbers to
give [a defendant in a capital case] hope that a Quaker would
serve on his jury.”
122
Cohen and Smith further argue that the
defendant in Lesher had the bad luck of receiving “the one
death-penalty-opposed juror who would decide to unilaterally
inform the judge of his inability to sentence [the defend-
ant] . . . to death.”
123
However, Cohen and Smith do not present
evidence to show that Quakers were quietly serving on juries
in capital cases and, therefore, acquitting defendants or causing
hung juries. Indeed, categorical opposition to capital punish-
ment in Pennsylvania was actually rare until the early nine-
teenth century, even among Quakers.
124
In the eighteenth century, Quakers frequently served on juries
or even as judges in capital cases and would convict if con-
vinced of the defendant’s guilt.
125
But as Timothy Hayburn
notes, the Quakers’ political system often “tempered [death
penalty sentences] with a liberal application of pardons [from
the governor and Provincial Council] to mitigate the harsher
aspects of the penal code.”
126
The Quakers also worked politi-
cally to construct a more lenient criminal justice system than in
122. Cohen & Smith, supra note 3, at 94.
123. Id.
124. See Albert Post, Early Efforts to Abolish Capital Punishment in Pennsylvania, 68
P
A. MAG. OF HIST. & BIOGRAPHY 38, 42 (1944) (“For almost a generation the ques-
tion of the death penalty lay in abeyance. . . . The capital punishment issue was
suddenly revived in 1809 by a series of articles . . . .”).
125. See Timothy J. Hayburn, Who Should Die?: The Evolution of Capital Pun-
ishment in Pennsylvania, 1681–1794, at 93–95 (May 2011) (unpublished Ph.D. dis-
sertation, Lehigh University) (on file with Lehigh Preserve, Lehigh University).
126. Id. at 23. The governor held the pardon power in colonial Pennsylvania,
which he “exercised . . . through his council and invariably acted upon the recom-
mendations of the judges who tried the culprits.” Herbert William Keith Fitzroy, The
Punishment of Crime in Provincial Pennsylvania, 60 P
A. MAG. HIST. & BIOGRAPHY
242, 255 (1936). Pardons were common in colonial Pennsylvania: “Of one hundred
and forty-one recorded convictions in capital cases before the Revolution, forty-
one were pardoned and twenty-six reprieved.” Id.
No. 3] Death Qualification 839
England and other states by legislatively establishing fewer
(but still some) capital crimes.
127
Thus, even Quakers in the co-
lonial era through the ratification of the Bill of Rights were often
willing to impose the death penalty.
As noted earlier, the whole matter of juror oaths suggests
that juror exclusion in capital cases arose as a necessary re-
sponse to the small but growing portion of the population that
was unwilling to impose the death penalty rather than as a dis-
ruption of historical practice. Indeed, in England in 1791,
Quakers were unable to serve on juries simply because their
religious convictions prevented them from taking oaths. Until
1833, Quakers were “disqualified from two offices—namely,
any office under the Crown, and from serving on juries.”
128
And even the legislative history of the Quaker and Moravian
Act of 1833 shows that, on at least one occasion, a criminal con-
viction was found to be defective because a Quaker, who had
not taken an oath, had served on the jury.
129
The legislative his-
tory also shows an additional objection to allowing Quakers to
serve on juries: that “the strong opinions entertained by mem-
bers of the Society of Friends with respect to capital punish-
ment might interpose some obstacle to their taking part in the
administration of the criminal law.”
130
However, at a different
point in the deliberations, the Duke of Richmond pointed out
that at least some Quakers were willing to impose capital pun-
ishment, noting that “a Quaker was on a Jury last January at
the Old Bailey, and did not hesitate to find a man guilty of fel-
ony.”
131
The bill passed, and Quakers gained the right to serve
on juries. However, the dual fears that Quakers could not
swear oaths to uphold the law and that Quakers would be un-
127. See id. at 29–31.
128. 17 Parl Deb HC (3d ser.) (1833) col. 1040.
129. See id. at cols. 1041–42. The defendant argued on appeal that no citizen
“could . . . be tried for any crime, unless it was on the oaths of twelve men. In the
present instance, it would appear that only eleven men had been sworn.” Id. at
1042. The court agreed and would have overturned the verdict except that the
defendant “solved the difficulty, by dying in the mean time in prison.” Id. at col.
1042. Interestingly, as this was a “wilful [sic] murder” case, the Quaker juror in
question seems to have been willing to impose the death penalty. See id. at cols.
1041–42. This seems to be the same case to which the Duke of Richmond alluded
discussed later in this paragraph. See id. at col. 1041.
130. Id. at col. 1043.
131. 17 Parl Deb HC (3d ser.) (1833) col. 1018.
840 Harvard Journal of Law & Public Policy [Vol. 43
willing to impose the law if they served as jurors suggests that
juries had the power—but not a right—to judge law in England.
III. T
HE 1791 JURY: A MIXED BAG FOR DEFENDANTS
Assessing the common law and state practice, the death
qualification of juries does not violate the original public mean-
ing of juries under the Sixth Amendment. However, the exclu-
sion of large numbers of jurors, such as in the Tsarnaev case,
based on their opposition to the death penalty does seem di-
vergent from the highly local and community-oriented image
of the historic jury, even if it violates no constitutional right.
But objectors who would like to appeal to the historic ideal of
the jury should be careful what they wish for. Now-Judge
Stephanos Bibas argues that, although “many defense lawyers
cheer certain originalist [criminal procedure] decisions, they
would not like the whole package that would result from ap-
plying a consistent originalist philosophy” to juries.
132
For in-
stance, most advocates of defendants’ rights would be appalled
at the prospect of giving the prosecution or police a greater
power in selecting juries than currently exists via prosecutorial
peremptory strikes. However, a direct application of historical
principles would do just that by imposing the “stand by” power,
which gave the state jury selection power far greater than today’s
peremptory strikes,
133
and by potentially giving sheriffs the
statutory power to select the entire panel.
134
Similarly, many
would balk at the idea of returning to a jury system where
132. Stephanos Bibas, Two Cheers, Not Three, for Sixth Amendment Originalism, 34
H
ARV. J.L. & PUB. POL’Y 45, 45 (2011).
133. Professor Baker describes the “stand by” power, which existed at common
law, stating:
The Crown could not challenge potential jurors peremptorily, but could
require them to ‘stand by’, [sic] which meant that their names were
passed over; only when the panel was exhausted were the names called
again, and then the Crown would have to show cause or acquiesce. In
practice this could give the Crown a greater control over the composition
of the jury than the prisoner had; but, like the challenge, it does not seem
to have been widely exercised.
Baker, supra note 56, at 36. Blackstone also notes this power, saying “the king need
not assign his cause of challenge, till all the panel is gone through, and unless
there cannot be a full jury without the persons so challenged. And then, and not
sooner, the king’s counsel must shew the cause, otherwise the juror shall be
sworn.” 4 B
LACKSTONE, supra note 42, at *347.
134. See Commonwealth v. Lesher, 17 Serg. & Rawle 155, 159 (Pa. 1828).
No. 3] Death Qualification 841
those who knew (and may have disliked) the defendants per-
sonally could still serve on juries unless removed via peremp-
tory strike.
135
Similarly, Cohen and Smith advocate for the return to a sys-
tem where jurors are not asked any questions, much less ques-
tions about their willingness to impose the law. They argue
that, under Blackstone’s regime, “[t]here was no allowance for
asking questions from which to determine whether a venire-
man could apply a death sentence.”
136
But returning to a world
in which jurors do not answer questions would cut both ways,
and the judge could not uncover and exclude jurors who be-
lieve the death penalty must be imposed: these jurors are ex-
cluded under Supreme Court jurisprudence.
137
Furthermore, if
jurors were not questioned, it would be difficult to filter out
those with other forms of prejudice, such as racial animus,
through either for-cause or peremptory strikes. But originalism
does not require a direct return to all criminal procedure prac-
tices at common law, whether they broadly favor defendants or
the prosecution. As Judge Bibas surmised, “[O]riginalism pro-
vides only a minimum, not a maximum.”
138
An originalist looks
to what rights existed under the original public meaning of the
Constitution rather than simply imposing all historical practice
on contemporary applications of criminal justice.
C
ONCLUSION
The differences between Blackstone’s jury selection process
and modern criminal procedure are substantial. Death qualifi-
cation does not seem to have had a direct analogue at common
law or early American practice. However, the original public
meaning of the right to a jury trial in criminal cases offered in
Article III
139
and to an impartial jury as provided in the Sixth
135. See, e.g., MANN, supra note 60, at 71–72.
136. See Cohen & Smith, supra note 3, at 92.
137. See Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“A juror who will automati-
cally vote for the death penalty in every case will fail in good faith to consider the
evidence of aggravating and mitigating circumstances as the instructions require
him to do.”).
138. Bibas, supra note 132, at 52.
139. U.S. C
ONST. art. III, § 2, cl. 3.
842 Harvard Journal of Law & Public Policy [Vol. 43
Amendment
140
does not preclude such a process. The common
law definition of an impartial jury was quite narrow and would
have included the selection only of those who could take an
oath to uphold the law. Although juries judged law as well as
fact in some colonies and early states, in other states at the time
of the ratification of the Constitution and Bill of Rights, they
did not. Furthermore, the leading common law commentators
do not support such a right: indeed, Coke argued clearly that
such a right did not exist. Thus, the evidence does not suggest a
right for citizens to sit on a criminal jury despite their unwill-
ingness to apply the law if the evidence requires it. The im-
portance of juries upholding the law was seen also in jurors’
oaths, and those who acquitted against the evidence were
sometimes called “pious perjurers,” indicating that such a
judgment of the law (or at least its application in the circum-
stances) was a violation of the “perjurer’s” duty.
Finally, though death qualification, per se, did not occur in
1791, the state clearly had powerful tools to shape the jury in
ways that likely led to the exclusion of jurors of whom the
prosecution was skeptical. Indeed, in Pennsylvania, the sheriff
was permitted by statute to select and exclude jurors during
the Founding era.
Death qualification poses challenging policy problems in re-
moving large numbers of potential jurors who might be more
sympathetic to defendants than the jurors who remain. How-
ever, the original public meaning of the Sixth Amendment does
not necessitate the inclusion of jurors who will not impose the
law. The original public meaning of the Sixth Amendment offers
defendants many protections, but it does not render the death
qualification of juries unconstitutional.
Douglas Colby
140. U.S. CONST. amend. VI.
