ACSBlog

by Eric J. Segall, Professor of Law, Georgia State University College of Law. Professor Segall is author of Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges. This post is part of an ACSblog symposium on Hollingsworth v. Perry and U.S. v. Windsor.

Progressives and liberals in favor of same sex marriage need to be careful what they wish for when the Court decides the Defense of Marriage Act (DOMA) and Proposition 8 cases later this term. It would be easy to argue that the Court should overturn DOMA and invalidate Proposition 8 on the grounds that governmental classifications based on sexual orientation require heightened scrutiny, and neither California nor the federal government can satisfy that standard. The problem with the Court imposing a national rule, however, may be a serious backlash against the decision resulting in long term pain for everyone on the left. The lessons of Roe v. Wade might be instructive.

In the years preceding Roe, there was a popular momentum flowing through the states to make the right to choose a bit easier but legislative efforts to secure the right were blocked by the efforts of a strong and well-funded Catholic minority. There is a similar momentum now (albeit only recently) on the issue of same-sex marriage. The Court’s decision in Roe, however, not only slowed the momentum but created a significant backlash though not in the traditional way most people think. In ground breaking work, Professors Reva Siegel and Linda Greenhouse have suggested that, when it comes to the right to choose, women truly are better off today than they would have been without Roe, and that the case for backlash after Roe is overstated. They may be right when it comes to the right to choose, but they did not purport to ask another related but equally important question. Although the backlash on abortion specifically may be overstated, the use of the Court’s decision in Roe by right wing groups on issues other than abortion has been a major problem for the left. The rise of the New Right in the 1970’s led by Jerry Falwell and Phyllis Schaffly, the emergence of brash, young,  and conservative anti-choice republicans  and judges in the 1980’s, and the difficulty of confirming liberal judges in the Senate, can in significant part be traced to the criticism of the Court’s decision in Roe. As Cass Sunstein has argued, the rise of the Moral Majority was certainly assisted by opposition to Roe. Meanwhile, as far as the long-term effectiveness of Roe is concerned, not only does the case currently hang by the thread of Justice Kennedy’s robes, but in many states between the two coasts poor women still have an enormously difficult time securing safe, affordable abortions. This is not to say that the Court erred in Roe, but it is a fair question whether the backlash to the decision across a broad range of important issues was worth the somewhat limited abortion rights gained by the decision.

by Heejin Hwang

“Clarence Earl Gideon, defend yourself.” With those words fifty years ago, Abe Fortas, who represented Clarence Gideon’s appeal in front of the Supreme Court, highlighted the isolating circumstances regularly faced by indigent defendants without representation. But upon its unanimous ruling in Gideon v. Wainwright, the Supreme Court foundthat all citizens -- rich or poor -- were constitutionally guaranteed a right to counsel, declaring that no one facing criminal charges would have to navigate the legal system alone.

As we commemorate the legacy of Gideon this week, however, our criminal justice system continues to abandon defendants, and defenders, alike. Delivering one of the keynotes at ACS’s inaugural Student Convention in early March, Stephen Bright, President and General Counsel of the Southern Center for Human Rights, spoke of his clients’ hopelessness. For example, he noted the people with cases before the Texas Supreme Court, 92 percent of them do not have a lawyer.  One homeless woman on trial, Bright said, chose to go to jail, because at least then she would be fed and “sheltered.”

As noted yesterday during a national ACS symposium on Gideon several experts said too many states have proven obstacles to ensuring Gideon’s promise. Recently, Attorney General Eric Holder declared that “America’s indigent defense systems exist in a state of crisis” and announced $1.8 million in funding to “improve access to criminal legal services and strengthen indigent defense across the nation.” This is promising, but more action is needed to ensure that states are aware of the funding and spend it appropriately. From 2005 to 2010, the Department of Justice administered 13 grant programs to support indigent defense systems; yet, a 2012 Government Accountability Office (GAO) report stated that “among the 9 grants …, two-thirds or more of state, local, and tribal respondents … reported that they did not use these funds for the specified purpose, due to competing priorities.” Moreover, “no more than 54 percent of grantees or public defender offices responding to GAO’s surveys were aware that such funding could be used to support indigent defense.”

ACS’s inaugural Student Convention brought together nearly 200 law students from across the country and focused on the state of indigent defense 50 years after Gideon.  Speakers and practitioners celebrated the landmark case but also took an unabashedly introspective look at themselves, rallying their colleagues to take their constitutional responsibility more seriously.