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Among the questions the U.S. Supreme Court will consider this term are whether enemy combatants detained at Guant�namo Bay, Cuba, will be tried for their crimes by military commission or in federal criminal courts, whether and when death by lethal injection for capital offenses constitutes cruel and unusual punishment, and whether laws requiring voters to produce photo IDs are constitutionally valid. The decisions in these and other cases will no doubt make important, lasting changes in the law. Although the justices have protested the significance attributed to their role (which Chief Justice John G. Roberts Jr., with charming false modesty, once likened to a baseball umpire calling balls and strikes), our high court has enormous power to shape society through its rulings. In view of such awesome authority, the new term’s beginning seems an appropriate time to reflect on what gives certain court decisions lasting significance. While some of the great cases remain highly controversial, one that has stood the test of time with remarkable resilience and widespread support is Gideon v. Wainwright, the famous 1963 Warren Court ruling that established the right of indigent defendants to be represented by counsel in criminal cases. Gideon was important because it addressed a structural problem at the heart of the American justice system. Although the Sixth Amendment guarantees the right to “assistance of counsel” in criminal cases, the promise of that guarantee had long been restrained by two major obstacles. As initially understood, it was a right only for individuals with economic means to hire legal assistance. Additionally, it applied only to criminal trials in federal court, not the far more common ones in state courts. Both of these limitations had been eroded before Gideon, but together they were still sufficiently formidable to cut off access to counsel for a large segment of the criminally accused. As author Anthony Lewis noted in Gideon’s Trumpet, his classic account of the decision, state prisons were full of indigent inmates who had been unrepresented at their criminal trials. The court had previously wrestled with these difficulties, but was unable to arrive at a satisfactory resolution. Some justices had extended a right of counsel for the indigent, but only in limited circumstances. Others had resisted dissenting calls for more fundamental change. Gideon‘s greatness comes from the court’s ability to detect in these earlier decisions a trend toward a broader perspective, and its awareness that the circumstances were right for structural, rather than incremental, constitutional reform. More important, perhaps, was the court’s capacity, without ignoring its own precedents, to look past the technicalities that had dominated prior decisions, toward fundamental first principles, particularly the promise of equal justice animating all of the Constitution’s many guarantees for the criminally accused. The court recognized that, without meaningful assistance from counsel, all those other guarantees were hollow and insignificant. Given the complexities of modern courts, procedures and criminal laws, as well as the many institutional advantages enjoyed by the prosecution, fundamental fairness required professional representation for indigent defendants. A nation that prided itself as the leader of the free world could not lay claim to a fair and equal system of justice without acknowledging the essential reality of a right to counsel in all cases, which many states were already recognizing under their own laws. The court extrapolated from these emerging trends to the conclusion that the Constitution’s guarantees of due process, equality and the privileges of citizenship were sufficient to make the commands of the Sixth Amendment universal rather than selective. Thanks to Gideon‘s transformative impact, the long-term legal debates previously dividing the court appear less controversial, and the principles that the court affirmed seem obvious today. Fundamentally altering both the legal profession and our system of justice, Gideon changed the nature of the criminal trial, raised the stakes and quality of trial advocacy on both sides, improved lawyers’ professional competence and increased courts’ competence and sophistication. Through the auspices of counsel, it also affected the growth and development of other important constitutional principles, vigorously advocated by the defense bar, often in cases where, without Gideon, there would be no counsel to raise them. There are still holes in our system for representing the indigent � particularly regarding funding for legal services and standards measuring adequate legal assistance. But Gideon‘s basic tenet � that fairness requires adequate professional representation � is firmly planted in our nation’s pantheon of basic values. Whether (and how far) we are prepared to apply that principle not only to citizens, but also to alleged noncitizen enemy combatants, is a question the court will be asked to decide this term in Boumediene v. Bush/Al Odah v. U.S. Whether the new term will yield another Gideon is anyone’s guess. But the chances will be improved if the court follows these guidelines: More than balls and strikes are at stake; the court needs to work through legal technicalities toward essential principles; an instinct for fairness lies at the heart of durable adjudication; timing is often critical; and the most important decisions will be remembered for what they do as well as what they say. The court should also remember that a nation claiming primacy among leaders of the free world has an obligation of fairness, not only to the wealthy and powerful, but to the downcast and outcast of society, including those convicted of capital offenses, and those we regard as our enemies. I believe Gideon‘s ultimate greatness was its capacity to make that promise of truly equal justice real. Mark C. Rahdert is a professor at Temple University James E. Beasley School of Law and a constitutional law scholar. He was a law clerk to Supreme Court Justice Harry A. Blackmun.

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