Clarence Thomas opposes a 'landmark precedent' guaranteeing defendants the right to counsel: legal columnist

One of the most influential Republicans of the 20th Century was U.S. Supreme Court Chief Justice Earl Warren, appointed by GOP President Dwight D. Eisenhower. One landmark ruling after another was handed down by the Warren Court, from New York Times v. Sullivan (1964) to Griswold v. Connecticut (1965) to Stanley v. Georgia (1969) to Brown v. the Board of Education (1954).

Another was Gideon v. Wainwright, a 1963 decision guaranteeing criminal defendants the right to legal counsel. Three years later, the protections of Gideon grew even stronger thanks to the Warren Court's 1966 ruling in Miranda v. Arizona. The Miranda warning famously recited in countless police dramas includes elements of both Gideon v. Wainwright and Miranda v. Arizona, including, "If you cannot afford an attorney, one will be appointed to you."

Far-right Justice Clarence Thomas, during his 32 years on the High Court, has made no secret of his disdain for the Warren Court. And that includes Gideon v. Wainwright.

In an opinion column published by MSNBC's website on March 19, legal blogger Jordan Rubin explains, "In a 2019 dissent, in which he was joined by Donald Trump appointee Neil Gorsuch, Thomas wrote that the justices who decided Gideon decades ago didn't attempt 'to square the expansive rights they recognized with the original meaning of' the Constitution. Of course, we've seen this GOP Court trample rights under the guise of originalism. And while this was only two justices calling Gideon into question, we've learned that precedent only means what the Court's current majority wants it to mean. I recently noted the irony of Thomas and Gorsuch wanting to revisit a landmark defamation precedent, given that doing so could hurt Fox News."

The "landmark defamation precedent" that Rubin is referring to is New York Times v. Sullivan. In that case, the Warren Court unanimously ruled that in defamation lawsuits, the defendant has to prove "actual malice" — the thing that Dominion Voting Systems is trying to prove in its $1.6 billion lawsuit against Fox News. Dominion, thanks to Sullivan, has a huge burden of proof in that case. And Fox News' legal team is — ironically, as Rubin points out — using, in its defense, a legal precedent that Thomas dislikes.

"But when it comes to further weakening the right to counsel," Rubin observes, "a majority latching on to that idea would be more than ironic: It would be tragic."