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The Hobbesian Temptation in the Law Part II: Justice Kennedy’s Breakaway, Justice Scalia’s Resistance

by Hadley Arkes
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On March 25, 2003 Anthony Cooper, for reasons not entirely clear, pointed a gun at the head of Ms. Kali Mundi and fired. He missed, and she fled. He pursued her, shooting as he ran, and managed to shoot her in the buttock, hip, and abdomen. Not enough, as it turned out, to kill her, but serious enough to get him prosecuted. Cooper was charged with five counts, ranging from attacking with the intention of killing, to the possession of marijuana and, on top of everything else, being an habitual offender. But rather than take on the rigors of trying the case, the prosecutors fell into a familiar groove and offered to plea-bargain: They would dismiss two counts and recommend a sentence of 51 to 85 months for the other two. At first, Cooper was willing to admit his guilt and accept the plea bargain. But his lawyer, summoning the wisdom of his experience, told Cooper that because Ms. Mundy had been shot below the waist, there was little likelihood that he could be convicted for the intent to murder. Armed with that advice, Cooper rejected the plea bargain. On the day his trial opened, he was given yet another offer, this one less favorable than the first. Again, he rejected the offer. But the advice of counsel went amiss: At the trial, Cooper was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months in prison.

Anthony Cooper would make his way to the Supreme Court on the claim that the misjudgment made by his counsel deprived him of "effective" counsel, and in that way deprived him of his constitutional "right to counsel." The "right to counsel" originally meant the right to employ a counsel, not the right to have one provided by the State, and it took a long series of steps, over many years, before a "right to counsel" could be converted into the claim now of a right to a deft counsel, or a counsel who makes no mistakes costly to his client. In the 1930's Justice Cardozo could draw out the implications of "due process of law" in Palko v. Connecticut: "that condemnation shall be rendered only after trial.... The hearing, moreover, must be a real one, not a sham or a pretense.... For that reason, ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel."

All of that was said under the rubric of "due process," not the Sixth Amendment, in the provision that a person accused in a criminal case "should have the Assistance of counsel for his defense." The deeper force of the argument cast in terms of "due process of law" was that these claims would hold, as requirements of rendering justice, even if there had been no Sixth Amendment. That right to counsel would eventually be placed by the Court in the Sixth Amendment, and yet the chain of steps should have been expected: A Court that had to be attentive to the difference between a real hearing and a "sham" would have to be attentive to the difference between a competent, earnest counsel and an indifferent lawyer with infirm skills. By 1984, the Court was willing to lift to the level of a "constitutional" concern the question of whether the counsel had been "effective" (Strickland v. Washington). In Anthony Cooper's heartfelt complaint, his counsel had been notably less than "effective" when the result of the trial had delivered a punishment far more severe than the one he could have had with the plea agreement. But the Court in Strickland had never pronounced a "right" to a lawyer who guessed rightly at every moment, much less a lawyer who would always a deliver his client from the danger of conviction or of a sentence more painful. Justice O'Connor, writing for the Court, acknowledged that the right to counsel had to depend on some critical threshold of legal competence. But the Court would have to rely, as she said, on "the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role of the adversary process that the Amendment envisions." O'Connor took the trouble also to make the sobering point that the purpose of the Sixth Amendment was "not to improve the quality of legal representation," as worthy as that goal was. "The purpose is simply to ensure that criminal defendants receive a fair trial." O'Connor would keep that that critical point threading through her argument: the "guide" to judgment was the test of a "fair trial," a "trial whose result is reliable." And that point marked the sharp lines of the argument now between Justices Kennedy and Scalia.

In the subtle shift of Justice Kennedy, the paramount and guiding object was no longer exactly a fair trial. "[T]he question," said Kennedy, "is not the fairness or reliability of the trial but the fairness and regularity of the processes that preceded it, which caused the defendant to lose benefits he would have received in the ordinary course but for counsel's ineffective assistance." [Italics added.] In other words, in the constitutional scheme of Justice Kennedy, the trial itself has been displaced from its premier importance as the testing ground of rendering justice. Its place has been taken by plea bargaining and the process that leads to—or away from—the trial. The test is not whether the outcome for the defendant has been just, but whether the process has caused him to lose "benefits." The advice of counsel could well have been shrewd, but if the defendant receives a penalty heavier than he had been led to expect, those additions to his punishment now constituted an injury rising to a deprivation of a constitutional right.

That is precisely where Scalia drew the lines of difference, in deep disbelief and with a thinly muted outrage. What the majority had done, in Scalia's reckoning, was to invert the moral ordering of the legal system: In Kennedy's construal "constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty." Even if lawyers had made massive mistakes, those mistakes would be overborne if the trial itself offered a rigorous test of the evidence and a justified judgment on innocence and guilt. As Scalia crystallized the matter, "Anthony Cooper, who shot repeatedly and gravely injured a woman named Kali Mundy, was tried and convicted for his crimes by a jury of his peers, and given a punishment that Michigan's elected representatives have deemed appropriate." Scalia crystallized the deep irony in the judgment:

[E]ven though there is no doubt that the respondent here is guilty of the offense with which he was charged; even though he has received the exorbitant gold standard of American justice—a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward, and ... the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid because he was deprived of his constitutional entitlement to plea-bargain.

But for Kennedy there was nothing of secondary importance about plea-bargaining in the constitutional system. With the surety of the worldly wise, he dismissed the claim that a "fair trial wipes clean any deficient performance by defense counsel during plea bargaining." That position, he said "ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials." It was a new realism, offered now to supplant nothing less than the axioms of justice themselves, the axioms that begin by insisting on respecting the difference between innocence and guilt. Of course the pressures in favor of plea-bargaining were massive. In a system of justice packed with cases, there was the chance to avoid the enormous cost of time and expense in trials delayed and drawn out. Scalia recognized that, for good reasons "we have plea-bargaining a-plenty." But now, as he took the sober measure of things, the highest court in the land "elevates plea-bargaining from a necessary evil to a constitutional entitlement."

From one angle, the scene could have been placed in a series quite familiar: Scalia, drawing a sharp line in logic, and complaining anew about his court "making it up as we go along." Nothing in the train of cases would be trivial, but after a long series of novelties and complaints, it may be hard to notice a case that truly marks a point of turning in the law. In the Lafler case, there was indeed a notable step in displacing the logical axioms of justice with the inverted premises of Hobbes. Justice begins with recognizing the moral significance of that difference between innocence and guilt. We respect that difference when we insist on visiting punishment only on the guilty, and that premise entails the commitment to make that distinction in the most compelling way by testing testimony and evidence with rigorous canons of reason, rather than having suspects endure beatings until they yield the words that the interrogators want to hear. We think that people accused of wrongdoing should have the right to confront the evidence and witnesses arrayed against them so that they have a chance to rebut them, and in rebutting them produce a verdict that is substantively accurate and just—a verdict that makes an accurate judgment on innocence and guilt.

We can keep drawing out in this way the implications that spring from the very logic of rendering justice, and along the way find items that have been made explicit in the Constitution (e.g., the right of a man accused of a crime "to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor"). Scalia's argument found its place in this chain of reasoning, and the chain itself was anchored in what Alexander Hamilton and John Marshall often referred to as "axioms" of the rule of law. They were necessary truths bound up with the very logic of justice, and whether they were respected in all places or not, they were as necessary to a constitutional order as lines and angles are necessary to the constituting of a triangle, or as the "law of contradiction" must be as a touchstone to any argument. These things are what the lawyers of the Founding generation understood as "the laws of reason and nature." Which is to say, they were the ground of the Natural Law. Among judges few men have been more playful or skeptical about the natural law than Justice Scalia, and yet once again his own arguments move him to the axioms of the law as the firmest ground of his judgments.

In place of those principles, grounded in the very axioms of justice, Justice Kennedy has offered now the Hobbesian version: Higher than a fair trial, higher than a dispassionate and accurate judging of guilt and innocence, is the interest of any man in avoiding punishment, no matter how justified that punishment may be. "The fact that [Anthony Cooper] is guilty," wrote Kennedy, "does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney's performance during plea bargaining." And his right to that "assistance" may override the verdict on the serious wrong he had in fact committed.

It makes perfect sense also that, as Kennedy plants the premises of Hobbes in the law, he finds himself deepening the mission of Justice Holmes to displace the law ever further from any moral ground. Precisely in line with the teaching of Holmes, he would replace the axioms of law with a scheme of empirical predictions. People of ordinary sense would ask of any legal system whether its judgments are just, or whether its modes of judgment are geared to the demanding test of charges and evidence. But in the legal science put in place by Holmes, we would take as a sufficient account of "the law" a series of predictions on what judges were likely to do. For Holmes, a legal duty does not involve what we are obliged to do or refrain from doing from the logic of right and wrong. As he remarked in his famous essay on "The Path of the Law"(1897), "a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right." And so we constitute a body of law, not by giving an account of its anchoring principles of right and wrong, but by assembling our predictions into a system. As Holmes remarked, "the number of our predictions when generalized and reduced to a system" will "present themselves as a finite body of dogma which may be mastered within a reasonable time." The lawyers who come to assimilate this cast of mind, lawyers willing to translate moral questions into mere predictions of what judges are likely to do, will go further in advancing Holmes's aspiration: that "every word of moral significance could be banished from the law altogether."

It may be a part of Scalia's guarded genius that, as he continues along the path of resisting Justice Kennedy's worst arguments, he is resisting the Holmesian project in the law. And by this time in the seasons of our experience it should be evident that anyone who is resisting the Holmesian project, anyone who is insisting on the primacy of the central moral axioms underlying the law, is doing nothing other than the work of the Natural Law.

John Marshall famously quoted Blackstone, that "where there is a legal right, there is also a legal remedy." But conversely, if the judges are not clear on the remedy, they might not be clear on the right they are trying to vindicate. And so in the Lafler case, Justice Alito tempered his disbelief with a certain bemusement that Justice Kennedy could not quite settle on the remedy he would order up to vindicate the wrong suffered by Anthony Cooper. Kennedy and the majority were content to remand the case to the district court with this basket of choices: The State would offer the earlier plea-bargain again, and the judge could decide whether to honor the plea bargain and dismiss the judgment of the jury in the trial. He could vacate some of the convictions and resentence Cooper—or even leave undisturbed the convictions and the sentence from the trial. If the judge leaves the sentence intact, we are simply back to the arrangement of judges accepting or rejecting plea bargains. But if the plea bargain is restored, we may indeed have something new: an enhanced leverage for defendants to bargain down any reduced sentence offered in a plea, because the trial will be rendered futile for the prosecutors if it delivers any penalty higher than the penalty offered in the plea bargain. Thus, the defendant would now have a constitutional right to reinstate the penalty that hurt him less.

And yet there is one lesson more in all of this. It begins with the persisting irony of Justice Scalia as the jurist who keeps offering the most compelling arguments grounded in the reasoning of Natural Law even as he keeps painting the Natural Law as a hopelessly implausible project. In his argument against Justice Kennedy in the Lafler case, he truly took the argument to the root, to the axioms bound up with the Constitution. In taking things to that level, of course he had to explain principles that were never exactly set down or explained in the text of the Constitution. That effort had no point unless Scalia were inviting his readers to see, as crisply as he laid them out, the reasoning that separated his understanding from that of Kennedy. But with what resources, what standards, was he inviting his readers to judge these rival reasons? Is it so obvious that we no longer see it? He was simply assuming that his readers would draw on the canons of reason that would ever come into play in judging the validity of any argument put before them. And they would do that even though it means drawing the guides of reasoning from sources outside the Constitution.

This is precisely what so many of our friends doing "conservative jurisprudence" insist that we cannot do: To move beyond the text, in their judgment, is to move into a jural world without guides, a virtual invitation to judges to enact their prejudices into law. In the recoil from liberal judges, otherwise worldly lawyers find themselves flying to the inference that, because judges make mistakes, because they offer at times bizarre constructions in their displays of genius, there must be something wrong with the canons of reason themselves. But in their recoil, the conservative lawyers run the risk of making themselves into "operational relativists": They begin to affect doubt that there are canons of reasons that can indeed tell us the difference between arguments plausible or implausible, true or false. And yet, their own commentaries, and Scalia's characteristic, forceful arguments, must belie their fears. For in making those arguments they are affirming every day that we are not at sea, without reasoned sources of judgment, even though our explanations persistently move us beyond the text of the Constitution. For our friends, it is the experience again of discovering that they have been speaking prose all their lives. If we can induce them to shake off that diffidence they have come to absorb about reason itself—if we can lure them away those formulas they have been content to put in place of a reasoning more demanding—we may liberate our friends to become the lawyers they were meant to be.

Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence