On Tuesday, the Court heard a lively hour of oral argument in U.S. v. Gonzalez-Lopez (No. 05-352). A discussion of the facts and arguments can be found in a previous post by clicking here . For press accounts of the oral argument, click here and here.

Deputy Solicitor General Michael Dreeben opened his argument by telling the Court that its modern Sixth Amendment jurisprudence is rooted in the understanding that the core purpose of the Amendment is to ensure a fair trial for each defendant. Justice Scalia immediately engaged the Deputy SG in a discussion of the history of the Sixth Amendment, noting that the right to appointed counsel was not recognized until the 1930s, and so the original guarantee of counsel must have been about more than ensuring a fair trial for all defendants. Instead, posed Scalia, the history shows that the right protected the ability to hire a lawyer of one’s choosing. Citing Wheat, Mr. Dreeben asserted that the modern jurisprudence on the Sixth Amendment made it clear that the “essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant….”

Mr. Dreeben argued for a Strickland prejudice standard to be applied to such claims, but in response to a question from Justice Ginsburg, he offered the Court three standards from which to choose: the government’s preferred Strickland standard, the Seventh Circuit’s “adverse effect” test, or Chapman harmless error review. Justice Kennedy posed several questions relating to the possible use of writs of mandamus to solve the issue earlier in a case, but Mr. Dreeben pointed out that the widespread or compelled use of mandamus would run counter to the holding of Flanagan. Justice Scalia won laughs from the courtroom gallery with references to “My Cousin Vinny” and the “Twinkie Defense.” He used the former analogy to show that sometimes a lawyer who may appear a poor choice to an objective viewer may be the best one from the defendant’s perspective and the choice must be left to him. He used the latter analogy to show an instance where a given defense strategy would have been considered ineffective – even crazy – on appeal, but in the event, triumphed. (For an explanation of the Twinkie Defense, click here.) Since it is impossible to know ex ante, Justice Scalia posited, we should leave the choice to the defendant, whose liberty is ultimately at stake.

Both Justices Souter and Stevens noted that the autonomy interest in choosing a lawyer is akin to that of the Faretta right to self-representation, which requires automatic reversal if violated. Mr. Dreeben conceded that there was an autonomy interest, but that it was “modest,” especially compared to the right to make one’s own voice heard in the courtroom. In an especially memorable line, Mr. Dreeben urged that the Sixth Amendment “is not a mini-First Amendment” located in the middle of the Bill of Rights, an argument that found traction with Chief Justice Roberts. Mr. Dreeben also argued that the government’s proposed standard would be administrable on review, and would be easier to apply than Strickland claims. Justice Alito pressed him on this point. Justices Breyer and Thomas remained silent throughout the argument.

Jeffrey Fisher argued on behalf of the respondent. He opened by telling the Court that the violation happens at the moment the government interferes with the defendant’s ability to chart his own defense by erroneously disqualifying his chosen counsel. Chief Justice Roberts asked why, if the right is so fundamental, it only applies to ten percent of defendants who can afford to retain counsel. Mr. Fisher responded that several clauses in the constitution grant rights that only people with means can fully exploit. For example, Mr. Fisher argued, the First Amendment guarantees the right to speak, but the government need not grant everyone a printing press. Mr. Fisher also responded that even though it only affects ten percent of defendants, it is an important ten percent whose rights should not be ignored.

The Chief Justice pressed hard on Mr. Fisher, posing various hypotheticals where it would be appear almost certain that there was no harm from the erroneous denial of counsel. Mr. Fisher argued that such cases would be rare, and that in any event it would be impossible to tell what effect the error may have had given the fact that there would be no evidence in the record regarding what the chosen attorney may have done. The Chief asked if the right would apply on appeal, to which Mr. Fisher initially answered yes, but he later backtracked. The Chief also expressed skepticism that a defendant whose first choice counsel was disqualified couldn’t find someone who would perform just as well, noting “It’s not as if he asks for a Rolls Royce and gets a Yugo or something.”

Justice Alito asked what effect the rule would have on plea deals, and Mr. Fisher responded by saying that some defendants will choose a lawyer mainly to secure a better deal, and that in such cases, a prejudice standard would be insurmountable since a defendant would have to satisfy the high test of Hill v. Lockhart. Justice Kennedy continued to inquire about mandamus as a remedy, and Mr. Fisher echoed Mr. Dreeben in arguing that relying on mandamus would present an end run around Flanagan. Fisher also asserted that mandamus would be impossible if the Court accepted the government’s suggestion that there was no violation of the right at all unless and until the defendant could show prejudice – a defendant could not ask an appellate court to remedy a violation that hadn’t yet occurred. Justice Scalia suggested Mr. Fisher was mischaracterizing the government’s position, which assumed a violation but questioned the remedy, but Mr. Fisher asserted that he based his characterization on the government’s brief. Chief Justice Roberts seemed intrigued by the Seventh Circuit’s adverse effect test. Justices Breyer and Thomas remained silent. Mr. Fisher closed by urging the Court to leave undisturbed the status quo rule of automatic reversal, which is applied overwhelmingly in the circuit courts of appeal.