On February 25, 2014 I received a number of emails about Kaley v United States, 571 U.S. ____ (2014).  The emails said that Chief Justice John Roberts had written a dissent and was championing the right to counsel.  They included quotes from his dissent:

“The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys.”

“In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play.”

“The very premise of our adversary system of criminal justice is that partisan advo­cacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). Today’s decision erodes that confidence by permitting the Government to deprive a criminal defendant of his right to counsel of choice, without so much as a chance to be heard on why such a significant pretrial deprivation is unwarranted.”

So, I immediately read the Kaley decision.  The Chief Justice is absolutely correct, the majority has lost its way.  It is bordering on granting the prosecution unfettered power over the defendant. 

But, I cannot be excited by the Chief Justice’s dissent for the premise that he is championing the right to counsel.  For as I read it, I kept noticing that he only spoke of the right to choose one’s counsel. In fact his opinion makes certain to distinguish the poor defendant who cannot afford counsel from the right he is really championing. “A defendant has no right to choose counsel he cannot afford.”  So, I suggest he is not championing the right to counsel.  He is only championing the right of people who can afford to hire counsel. 

Jeffrey Toobin, the acclaimed author of The Nine and The Oath, wrote of the Chief Justice in a New Yorker article: “Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” 

I would suggest that the Kaley decision only solidifies Toobin’s view.  Would the Chief have argued so strenuously of the right to counsel if this had been a black man using alleged drug proceeds to hire counsel?  But that is not what Kaley is about.  Kaley is about the existing power relationships that a ‘doctrinaire conservative’ would support.  It is about two very well off people who were running a business reselling expensive medical devices – corporate job creators is the term that would be used by certain commentators.  They were being attacked by the government and deprived of their profits.  That, in the Chief Justice’s view, the corporate defendant should prevail should be of little surprise. 

When the Chief Justice supports the right to counsel for a poor defendant of color, that will be a decision worth its weight in gold.  But that is not today.