Access to Justice

by Nicole Flatow

The U.S. Supreme Court’s pair of March decisions establishing the right to the effective assistance of counsel during plea negotiations was considered by many the most significant criminal process precedent since Gideon v. Wainright. But the lawyer whose argument prevailed in one of those cases was not feeling positive vibes from the Justices during her oral argument – her first ever before the high court.

In an American Constitution Society video webinar on her experience litigating Lafler v. Cooper, state appellate defender Valerie Newman said it was the justices’ hostility that surprised her the most.

 “It was not a pleasant experience,” she said. “… I tell people the experience felt to me like there were nine lions, even though Justice Thomas never talked, and I was the piece of meat that was thrown into the ring and they were just all scratching at me to see who could get the biggest piece.”

Newman held her ground and stood by the argument she had been making since the beginning: that “the Sixth Amendment applies to all stages of the criminal process, and plea bargaining is a stage of the criminal process. If the defendant receives deficient advice that affects the defendant’s decisions down the line, then the defendant is entitled to relief.”

In this case, because her client had been advised to go to trial based on misinformation from his lawyer that he could not be convicted, Newman had to argue that the trial itself caused the harm – a notion that incited particular hostility from Justice Scalia.

“I thought Justice Scalia, if he could, would have reached over the bench and strangled me,” Newman said. “That’s how visibly distraught he was at my argument. And even the justices I thought would be on my side, like Justice Breyer, Justice Breyer yelled at me at one point.”

By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law

There’s quite a lot to say about the damages suit filed last week by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the family of Anwar al-Aulaqi and his 16-year-old son Abdulrahman, both of whom were killed (along with a third U.S. citizen) in a pair of drone strikes in Yemen in the fall 0f 2011. And although the suit raises a host of important and thorny legal questions of first impression, including whether a non-international armed conflict existed in Yemen at the time of the strikes and whether a U.S. citizen can claim a substantive due process right not to be collateral damage in an otherwise lawful military operation, I suspect my Lawfare colleague Ben Wittes is quite correct that this case won’t actually resolve any of them. Instead, as Ben suggests, it seems likely that the federal courts will refuse to recognize a “Bivens” remedy — a cause of action for damages arising directly out of the constitutional provision allegedly offended (e.g., the Fifth Amendment’s Due Process Clause), and that the plaintiffs will therefore be unable to state a valid cause of action.

As I explain below, such a result would unfortunately perpetuate a fundamental — and increasingly pervasive — misunderstanding of Bivens. Moreover, even if plaintiffs will ultimately lose suits like Al-Aulaqi because of various defenses — including qualified immunity, the state secrets privilege, and the political question doctrine — getting the Bivens question right still matters. To the extent that the specter of judicial review deters governmental misconduct down the road, Bivens suits can and should have a salutary effect on the conduct of U.S. national security policy — so long as they’re properly understood in the first place.