Scalia was on Charlie Rose last night (don't worry; I didn't watch either) and we have a piece on the legacy of Lawrence v. Texas. Well, excuse enough ...
When he feels that the Constitution guarantees it, Justice Scalia can be quite eloquent about upholding liberties, no matter how unpopular the litigants. This includes flag burners, alleged child molesters who want to confront their accusers, American citizens (as compared to alien) held as enemy combatants without redress to the courts and those whom "a state court found mentally competent to stand trial if represented by counsel but not mentally competent to conduct that trial himself" who wish all the same to go it alone.
This last one was addressed by a recent case decided by the Supreme Court, in which a 7-2 (Scalia/Thomas) majority held "whether a defendant who is represented by counsel can proceed to trial and whether a defendant who goes to trial must be permitted to represent himself" can be two different things. IOW, the fact a person is competent to stand trial might not mean s/he is competent to go it alone.
Scalia disagreed with the majority, in part disputing what "dignity" for the accused here means. The majority in part focused on the fairness of the trial, including appearance of unfairness, and the accused embarassing him/herself. But, not just that, clearly. The whole whole case was also based on the idea the accused was not competent enough to waive counsel. It was not just about them looking bad.
Anyway, this all led to this by Scalia, with all the quotes/cites removed:
Rather, the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the State—the dignity of individual choice. The Sixth Amendment’s counsel clause should not be invoked to impair the exercise of [the defendant’s] free choice to dispense with the right for whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice. Nine years later, when we wrote that the self-representation right served the dignity and autonomy of the accused, we explained in no uncertain terms that this meant according every defendant the right to his say in court. In particular, we said that individual dignity and autonomy barred standby counsel from participating in a manner that would to destroy the jury’s perception that the defendant is representing himself, and meant that the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury.
Lawrence v. Texas comes in here because it is based in part on the "master of one’s fate" theme. This is what privacy rights are all about -- not just seclusion, but in the words of former Reagan man (this suggests how a Reagan appointee can write Lawrence):
What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty.
Where's the connect to a right to counsel case, one might ask. Well, first, the issue is not totally specific to the Sixth Amendment. The amendment guarantees the right to counsel. Does this literally by the words themselves mean you also can refuse one, even if in the process the fairness of the trial will be in jeopardy? In fact, Scalia once noted that the right of refusal is probably more of a "due process" right, a more open-ended affair. Anyway, as to state trials, the Fourteenth Amendment only speaks to broad due process rights and privileges and immunities.
More importantly, our constitutional system is based on certain broad themes (including checks and balances, separation of powers, individual rights) that go above and beyond the concrete provisions found in the document. We can't ignore the provisions in support of open-end things like "fairness." But, equally, we cannot ignore the themes. In fact, concrete provisions tell us just that ("concrete" as in by the force of the words -- the Ninth Amendment, let's say).
Scalia thinks this opens us to arbitrary judicial control. But, to cite Justice Harlan (a judicial mentor of sorts to key justices), "having regard to what history teaches" is a core measure in determining the breadth of our constitutional rights. It is not only a matter of looking at specific liberties ("a series of isolated points"), but the underlining principles too. Such as "dignity"and so forth.
Going back to Lawrence, the individual holding is important, but even more so is the principles upheld. Let it be noted the same author wrote the recent 5-4 (Lawrence was 6-3, though his opinion only had support of five) ruling on habeas corpus, also declaring the importance of basic constitutional values, including checks necessary for liberty.
I see it as something of a piece, why even though Kennedy will disappoint, his is an important line all the same.
