ESSAY CONTENTS INTRODUCTION I. MAKING RIGHTS II. THE PROTECTIVE EFFECT A. Gideon and Rights-Making B. Gideon's Adversarial Role C. Gideon's Protective Consequences III. LAW PROTECTION AND CIVIL GIDEON CONCLUSION INTRODUCTION
Gideon v. Wainwright is widely and accurately hailed as a milestone in protecting the rights of individual defendants. Yet Gideon's guarantee of appointed counsel for indigent defendants also serves another purpose. In addition to protecting the rights of individual defendants, it also protects the integrity of the development of the law.
This law-protection function is both conceptually simple and relatively unexamined. If an individual criminal defendant loses an issue within her trial, and the trial court's decision on the issue is appealed and affirmed, that loss of course affects the fate of the individual defendant-often profoundly so. But a loss on a particular issue can have consequences far beyond that individual defendant: appellate courts on direct and collateral review may articulate legal principles that will also govern subsequent defendants in the jurisdiction.
These potentially far-reaching implications of each decision reveal the importance of appointed counsel not only to individual defendants, but also to the development of the law. Law that emerges from a case pitting a pro se defendant against an experienced prosecutor lacks integrity. Such a process fails to provide us with the assurance that the soundness of the resulting legal principle has been tested by the adversarial system. By contrast, the presence of appointed defense counsel assures us that-at a minimum-the legal arguments on either side have been articulated by attorneys trained in the relevant substantive law and procedure, and that the legal principle the court ultimately articulates is informed by their efforts. (1) And appointed counsel also preserves confidence in the judicial system by assuring us that the law that emerges from that system has been subjected to adversarial testing.
Gideon itself does not speak explicitly to these concerns. But, as I will argue, the historical context surrounding the decision reflects a nascent concern not only for the rights of criminal defendants in particular proceedings, but also for the systemic development of the law. And subsequent decisions reveal the importance of Gideon not only for individual criminal defendants, but also for the articulation of law more generally. That is, the guarantee of representation in criminal cases significantly benefits the development of the law, and, indeed, these benefits serve as an independently sufficient rationale for providing counsel to indigent defendants. These considerations offer a justification for extending Gideon to certain civil contexts.
This Essay proceeds in three Parts. Part I summarizes the idea of law protection as it relates to the process of rights-malting, which has gained increasing scholarly attention in recent years. Part II examines this rights-making discourse as it relates to Gideon. Both the theory permeating Gideon and the concrete consequences of the decision indicate that the guarantee of appointed counsel has changed the course of rights-making, ultimately protecting and facilitating the rights-making endeavor. Part III considers the rights-making rationale for Gideon as a justification for extending Gideon to civil contexts that raise concerns similar to those present in the criminal context.
In recent decades, both courts and commentators have given increasing attention to the process of law articulation--that is, to the way that law is made. The Supreme Court has stated plainly that adjudication "is the process for the law's elaboration from case to case." (2) Likewise, Owen Fiss has influentially argued that the most important role of courts "is not to resolve disputes, but to give the proper meaning to our public values." (3) And Henry Monaghan concurs that "the process of constitutional adjudication now operates as one in which courts discharge a special function: declaring and enforcing public norms." (4) Such public values and public norms quite naturally include the individual freedoms embodied in our Bill of Rights.
Moreover, both courts and commentators have at times acknowledged not only that courts do articulate constitutional rights (5) as they decide cases, but also that courts should articulate the scope of constitutional rights-even, in some instances, when doing so is not strictly necessary to resolve the immediate dispute. (6) Rights elaboration is an independent benefit-one sufficiently important to justify a doctrinal structure that facilitates it. (7)
In a range of situations, the Court has promoted law articulation by intentionally structuring doctrine to facilitate the development of the law. (8) In dictating the framework under which courts should analyze a defense of qualified immunity, for instance, it has experimented with both requiring and allowing courts to resolve the constitutional merits prior to the immunity question. (9) In delineating the good faith exception to the exclusionary rule, it has held that courts may determine whether a constitutional violation took place prior to the question of whether the officer was acting in good faith. (10) And in harmless-error analysis, it has indicated that courts should resolve the question of whether an error occurred before determining whether that error was harmless. (11) These doctrinal mechanisms reflect a belief in the importance of articulating constitutional rights.
Commentators share courts' preoccupation with rights articulation. A large literature has considered the relationship between rights and remedies, developing various theories of how we should classify, analyze, and critique the judicial work product that becomes the law. (12) Scholars have found the rights-making discourse relevant in many arenas. For example, Jennifer Laurin has focused specifically on the difficulties inherent in translating rights from one adjudicatory context to another, such as from a suppression hearing in a criminal trial to a civil rights action under 42 U.S.C. [section] 1983. (13) Orin Kerr has emphasized the value of rights-making in considering whether the good faith exception to the exclusionary rule should apply to overturned law. (14) And in other work I have emphasized the need for attention to the conditions necessary for courts to articulate well-considered formulations of constitutional rights. (15)
Although some commentators have questioned the proper scope of courts' rights-making activities, (16) most do not dispute the value of the basic rights-making function. (17) Rather, commentators generally agree that courts make rights and that this rights-making function is normatively desirable; to the extent they disagree, that disagreement generally concerns the range of situations in which courts may or should elaborate the structure of constitutional rights. (18) In sum, both courts and commentators have acknowledged the systemic value of judicial rights-making.
THE PROTECTIVE EFFECT
Although law protection was not an explicit basis for the result in Gideon, the Court's contemporaneous jurisprudence hints at that rationale and harmonizes with the more recent discourse emphasizing the importance of lawmaking. Moreover, the critical role of adversarial process in ensuring sound legal principles reveals Gideon's significance in protecting the law. These circumstances reveal the role of appointed counsel in systemically facilitating and improving the law.
Gideon and Rights-Making
Gideon itself does not explicitly address the effect of appointed counsel on rights-making. However, other Gideon-era criminal procedure opinions as well as contemporaneous thinking and subsequent scholarship evince a growing judicial concern for law protection.
The Warren Court emphasized that all criminal defendants, regardless of resources, should receive a fair trial, and believed that a fair trial inherently included a relatively level playing field. (19) The Court also emphasized the importance of the integrity of the legal system to judicial legitimacy, and, as a necessary condition of such integrity, the development of sound and reliable precedent. (20)
Indeed, several Warren Court cases hint at a specific preoccupation with the way that the law develops, particularly with regard to the relationship between legal representation and rights-making. In Douglas v. California, a companion case to Gideon, the Court declared a right to counsel for indigent criminal appellants. (21) The Court's explicit concern was, of course, simply that the individual defendant should have adequate protection on appeal as well as at trial. But we might also read the extension of the right of counsel to appeals as an expression of the Court's nascent awareness that appellate courts make law with consequences that resonate beyond the fate of the specific defendant in the case. The Court could easily have cabined the right to counsel to trial--that is, to the scope of Gideon itself. Its decision to go further thus implies an understanding of the broader consequences of appellate decisions and the need for counsel on appeal to manage those broader consequences.
Douglas's concern with rights-making is implicit. Other contemporaneous cases, however, communicate that concern more overtly. The Court's seminal decision in Mapp v. Ohio reveals a general concern with the way in which precedent develops. (22) For example, the majority opinion references the "hazardous uncertainties" of separate exclusionary rules for the federal and state systems. (23) This language, combined with Mapp's application of the exclusionary rule to the states, reveals the Warren Court's desire for stable and unified legal principles in the face of questionable and varied police tactics. Likewise, in Miranda v. Arizona, the Court displayed a full awareness of...