Saturday, March 9, 2019

GateHouse: Justice Thomas’ assault on precedent continues

Matthew T. Mangino
GateHouse Media
March 8, 2019
More than a half a century ago the U.S. Supreme Court handed down the landmark decision of Gideon v. Wainwright. In Gideon, the High Court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a crime who cannot afford a lawyer.
The decision is recognized as one of the most important of the 20th century. The decision brought into the national lexicon a line known by anyone who has ever watched a television crime drama, ”(Y)ou have the right to an attorney if you cannot afford an attorney, one will be appointed for you ...”
Today, Gideon is under attack. There is, at this point, one pretty powerful guy who thinks Gideon, and a series of other decisions were “incorrectly” decided. The Supreme Court precedents, attacked by Justice Clarence Thomas, sound like a who’s who of landmark decisions from the Warren Court of the 1960s
In a decision last week, the U.S. Supreme Court ruled 6-3 for Gilberto Garza Jr., who waived his right to appeal after entering a guilty plea, then instructed his attorney to appeal.
The appeal deadline passed without an appeal, and Garza challenged his lawyer’s representation, arguing his counsel had provided ineffective assistance of counsel - the Supreme Court agreed.
In a dissenting opinion, Justice Thomas implied Gideon had been wrongly decided in 1963. Thomas, joined by Justice Neil Gorsuch, said “our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee.” Thomas disagrees with the idea that indigent defendants have a right to counsel. He suggests the Sixth Amendment only permits “the accused to employ the services of an attorney.”
This is only the most recent attack by Thomas on long established precedent. Last month, he suggested the Supreme Court reconsider New York Times v. Sullivan the 1964 decision that provided the press with broad First Amendment protections against libel suits brought by public officials. Thomas wrote, “New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law.”
In a 2018 Fourth Amendment case in which the court refused to expand the automobile exception to the search of areas immediately around a home, Thomas questioned whether the exclusionary rule should have been extended to the states.
In 1961, through the iconic case of Mapp v. Ohio the U.S. Supreme Court extended a federal remedy to state courts in an effort to squelch unconstitutional police action - the exclusion of illegally obtained evidence from admission in a criminal prosecution.
Cleveland police officers went to the home of Dollree Mapp looking for a suspect in a criminal investigation. Mapp refused to let the police in without a warrant.
The police left, when they returned they were armed with a “fake” warrant. Chicanery took the place of real police work. Instead of going to a judge to get a warrant, the police drew up their own. After entering Mapp’s home, police conducted a search and confiscated obscene material resulting in Mapp’s arrest.
The High Court excluded from trial the illegally confiscated obscene material.
In another Fourth Amendment case, this one from 2017, dealing with cell phone location data, Thomas challenged the “reasonable expectation of privacy” test first articulated in Katz v. United States in 1967. Thomas wrote, “The Katz test has no basis in the text or history of the Fourth Amendment. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.”
With the court’s growing Conservative block, Thomas may someday realize his desire to rewrite the Court’s interpretation of some of the Constitution’s most fundamental rights.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
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