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.