How many Supreme Court decisions can you name that are both thoroughly entrenched (i.e., virtually nobody wants them to be overturned, and indeed many people would be upset if they were overturned) and plainly inconsistent with originalism (i.e., even originalists don’t have a plausible defense of the decisions– not something like the air force or Brown, where non-originalists are the ones who insist on the inconsistency)? Gideon v. Wainwright, now fifty years old, is the best candidate I can think of.
The blogosphere and journals are full of celebrations of Gideon— and of course one can see why it is celebrated. But would a world without Gideon really be so bad? Kent Scheidegger notes that even before Gideon, some governments provided appointed counsel. And Doug Berman speculates that Gideon actually made it easier to enact punitive drug laws that burden the poor. Moreover, we shouldn’t forget how low the funding and quality are for some of the legal representation that exists only because of Gideon. Nor should we forget that (at least under the current system) pro se defendants often do better than represented ones.
Finally, I think we should ask what kinds of non-governmental organizations would exist in a world without Gideon. I understand from folks who have tried that it is very very hard to raise money or political action for criminal defendants, especially poor ones. But I wonder if that would still be true in a world where that was the only way to fund basic defense counsel– might the folks who currently poor money and resources into (say) fighting the death penalty poor it into a group of lawyers to defend the indigent accused of more mundane crimes? Maybe not, or maybe not enough. But in my more pessimistic days I wonder if the results would really be worse than what we’ve got.