Convictions: Slate's blog on legal issues

Justice Scalia, Pragmatist

[Orin Kerr]

During this morning's Supreme Court oral argument in Rothgery v. Gillespie County, Justice Scalia had an interesting exchange with Rothgery's lawyer, Danielle Spinelli, about the consequences of the exact moment that a right to counsel attaches in a criminal case. Spinelli was arguing that a criminal defendant gets a right to counsel after the preliminary hearing, and Scalia wanted to know if that meant that a lawyer actually had to be appointed at that moment.

Specifically, Justice Scalia wanted to know if the attachment of the right to counsel meant that a lawyer must be appointed, or if it only meant that a lawyer must be appointed if any important proceedings occur. During the exchange, Scalia explained why he thought this mattered: "If I think that counsel has to be appointed right away ... I'm going to give a different answer to the first question [of when the right attaches]. But if I know that counsel doesn't have to be appointed until the prosecution proceeds to some significant phase where an attorney would be-would be really helpful, then-then I can-I can be quite more sympathetic to your-to your argument [that the right to counsel attaches right after the hearing.]"

Kind of a pragmatic argument for a self-described originalist Justice, it seems to me.