Supreme Court justices insist that they have no agenda when it comes to deciding which cases and issues to tackle.

But it is hard these days not to think that the court is deliberately undertaking a significant re-examination of its doctrine regarding the ineffective assistance of counsel.

The latest data point came August 22, when the court stayed the Texas execution of John Balentine. In his latest appeal, Balentine’s lawyers argued that a little-noticed Supreme Court ruling from last term, Martinez v. Ryan, should give him another chance to make an ineffective assistance claim on appeal. The U.S. Court of Appeals for the Fifth Circuit had ruled that Martinez did not apply to Texas rules for capital cases, and that the claim was procedurally barred.

The high court halted the execution at least until it can review Balentine’s petition for certiorari on the issue. It is conceivable the Court will deny review, and the execution could proceed. But the Court has slapped down the Fifth Circuit before on procedural issues. The fact that Balentine’s appeal involves ineffective assistance of counsel may make it more appealing to the Court as a vehicle for making another statement on the issue.

The court’s “ineffective assistance” doctrine has long been governed by the 1984 decision in Strickland v. Washington. It requires, simply put, that the lawyer’s deficiency be serious by objective standards, and that the incompetence likely made a difference in the outcome of the trial. It has been stingily interpreted since, in part out of fear of a flood of claims, and concern that lawyers’ trial strategies, even if flawed, should not be routinely second-guessed by judges on appeal.

Retired Justice Sandra Day O’Connor, who authored the ruling, has said that in terms of everyday impact, Strickland may have been her most important decision as a justice. But as long ago as 2007, O’Connor said the doctrine could use some “significant new work.” At a Library of Congress discussion of Strickland‘s impact, O’Connor noted that the doctrine had not yet been applied to the plea bargain process, especially in situations where lawyers had failed to advise clients of the “terribly important” collateral consequences of pleading guilty.

Three years later, the high court got O’Connor’s hint. In Padilla v. Kentucky, the court ruled that a lawyer’s failure to advise an alien client of the deportation consequences of a guilty plea amounted to ineffective assistance.

“The Padilla case, honestly, was one of the huger cases of the past 50 years,” said Margaret Love, a D.C. practitioner who has written extensively about collateral consequences and the plea bargain process.

Last term, the Padilla case begat two more decisions, Lafler v. Cooper and Missouri v. Frye, definitively applying Strickland to the plea bargain process and opening up what dissenting Justice Antonin Scalia derisively called a “whole new boutique of constitutional jurisprudence.”

Some commentators have compared Lafler and Frye to Gideon v. Wainwright, which guaranteed counsel to indigents in criminal trials, as major milestones in Sixth Amendment doctrine.

On October 30, the court will hear arguments in Chaidez v. U.S., a Padilla sequel that asks whether the ruling can be applied retroactively. Other cases set for the fall term, including Ryan v. Gonzales, also relate to the adequacy of counsel in criminal cases.

Why the new focus and direction on ineffective assistance?

A major reason, says professor Douglas Berman of the Ohio State University Michael E. Moritz College of Law, is the court’s realization that policing lawyer incompetence only during trials does not match the reality of the criminal justice system today, in which plea agreements, not trials, resolve more than 90 per cent of all cases.

“The court has more of an awareness that a lot of stuff happens before a case gets even close to a trial,” Berman said. “And an awareness of how significant the discretion of other participants is — not just the judges.”

Justice Anthony Kennedy wrote in Lafler, “Criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.…The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”

D.C. practitioner Love also thinks the court is “concerned about the overwhelming number of plea bargains, and the overwhelming imbalance of power” between the prosecution and defense. “It’s an exciting time.”

The Supreme Court has usually left the regulation of lawyer conduct to the states. But the new trend may also represent a feeling by some justices that they have a role to play in superintending the legal profession and raising its standards nationally.

In Maples v. Thomas, also decided last term, the court recounted, in excruciating detail, Sullivan & Cromwell’s abandonment of an Alabama client on death row. In the process, the court also highlighted Alabama’s meager system for providing legal representation to indigent death row defendants on appeal. Justices have also taken increasing interest in cases involving prosecutorial misconduct – notably Smith v. Cain last term, which supported the defendant in a case of the prosecutor withholding key evidence before trial.

Yet a majority of the court still often sides with prosecutors on issues of immunity, and still sometimes rules against ineffective assistance claims in trial settings. Berman cautions against expecting a sea change from the current court, which still largely adheres to the restrictions on appeals contained in the Antiterrorism and Effective Death Penalty Act of 1996.

In the Martinez case, Scalia in dissent said that in the wake of the decision, “I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on.” But if the rest of the justices shared Scalia’s alarm, they did not show it. Justice Clarence Thomas was the only member of the court to join Scalia’s dissent.

Tony Mauro can be contacted at