Supreme Court Enters the 21st Century....Barely

| Thu Mar. 22, 2012 11:49 AM EDT

Conservative Supreme Court justices really, really hate the idea that we live in the 21st century:

Defendants in criminal cases have a constitutional right to a competent lawyer's advice when deciding whether to accept a plea bargain, the Supreme Court ruled, providing a significant expansion of rights that could have a broad impact on the justice system.

"Ours for the most part is a system of pleas, not a system of trials," Justice Anthony M. Kennedy said for the majority in a pair of 5-4 decisions. Noting that about 97% of federal convictions and 94% of state convictions result from guilty pleas, Kennedy wrote that "in today's criminal justice system, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for the defendant."

The ruling drew a sharply worded dissent from Justice Antonin Scalia, who took the unusual step of expressing his disagreement in the courtroom...."Until today, no one has thought that there is a constitutional right to a plea bargain," Scalia [said].

Well, there's still no constitutional right to a plea bargain. It's at the discretion of the prosecutor, the same as it's always been. But Kennedy has this one right: in 1787, the "criminal prosecutions" mentioned in the Sixth Amendment were all jury trials. In 2012, virtually all criminal prosecutions are plea bargains. Like it or not, times have changed, and for the vast majority of defendants it's the plea bargain that's effectively their trial.

What's more, this case sets a pretty low bar for "competent" representation. Reading further in the LA Times piece, I see that in one case a guy turned down a plea deal because his lawyer told him he couldn't be convicted of attempted murder since he had shot below the waist. That's the kind of thing that might be a funny line if it were delivered by a breezy Bill Murray in a lawyer version of Stripes, but not so funny when it's real life and puts a guy in prison for 30 years.

This case really seems to capture the bankruptcy of judicial originalism in a nutshell. Scalia and his fellow conservatives just can't stand the idea that constitutional rights are necessarily going to evolve as the nature of society evolves. So they stamp their feet and pound their fists and insist that, by God, a trial is a trial even if only 3% of modern-day defendants ever actually get one. Their starry-eyed attachment to a gauzy vision of 18th-century virtue is puerile at best and actively malign at worst.