Jurisprudence

The Right to Counsel Shouldn’t Be Controversial

Ketanji Brown Jackson’s past is an asset, not a liability.

A diptych of close-up photos of the two judges Ketanji Brown Jackson and Constance Baker Motley.
Ketanji Brown Jackson and Constance Baker Motley. Photo illustration by Slate. Photos by Mandel Ngan/AFP via Getty Images and Bettmann/Getty Images.

In her February speech accepting President Biden’s nomination to the Supreme Court, Judge Ketanji Brown Jackson thanked family, friends, colleagues, law clerks, and mentors—but saved her last expression of gratitude for Constance Baker Motley.

A ground-breaking attorney born in 1921, Motley was the first Black woman in the United States to serve as a federal judge, and was a chief legal tactician of the civil rights movement. She helped litigate Brown v. Board of Education, one of the most important cases in American constitutional law; she desegregated schools and universities in the South; she represented Dr. Martin Luther King Jr. in Birmingham; and she won nine of the 10 cases she argued before the Supreme Court.

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“Today, I proudly stand on Judge Motley’s shoulders,” Jackson said in February, calling Motley’s life and career “a true inspiration to me as I have pursued this professional path.”

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She added that not only did she share Motley’s “steadfast and courageous commitment to equal justice under law,” but a birthday too. The two women were born 49 years apart, to the day.

But the parallels run deeper still: Jackson, an eminently qualified jurist, was already facing mischaracterizations of her extensive courtroom experience. They began before she was nominated for the court, a repeat of what Motley endured more than five decades before.

By the 1960s, Motley had made an indelible and historic mark on American law. One of the cases she argued in front of the Supreme Court was Hamilton v. Alabama, a unanimous 1961 decision establishing the right of defendants in capital cases to assistance of counsel at arraignment.

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But Motley was passed over for a seat on a federal appeals court because opponents of her nomination turned her greatest asset into a liability, recasting her work to fulfill the promise of the Equal Protection Clause of the Constitution’s Fourteenth Amendment as “bias.”

In their minds, Motley’s pathbreaking career as a civil rights lawyer—a Black lawyer at that—meant she could not be “fair” to all.

Fifty-six years later, critics of Judge Jackson’s historic nomination to the U.S. Supreme Court used the same tired playbook, seizing on Jackson’s two-year stint as a public defender to portray her as a pawn of the imagined “radical Left.”

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This line of criticism reveals either disdain for the American constitutional system—or a basic misunderstanding of it. And it is a dangerous echo of the reasoning that kept Motley from a seat on a higher court on the federal bench.

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Public defenders, those lawyers who by court appointment serve on behalf of indigent people accused of crimes, are vital to the integrity of the American judicial system. They uphold the Sixth Amendment to the Constitution, which guarantees the right to a fair trial and the assistance of counsel, and that is a critical part of our Bill of Rights—a portion of the Constitution that enshrines individual rights long understood to be sacred features of the American republic. Those individual rights include religious liberty, freedom of speech and assembly, the right to bear arms, and the prohibition against unlawful search and seizure.

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Written by James Madison, the “father of the Constitution,” the Bill of Rights distinguishes this country from illiberal and authoritarian regimes in which governments can deprive people of their lives and liberties without due process of law.

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Clarence Gideon, whose case, Gideon v. Wainwright, established the powerful precedent for public defenders, was a white man with an eighth-grade education. Charged in 1961 with breaking and entering, Gideon was denied counsel and forced to represent himself in a Florida court. He was found guilty and sentenced to five years in prison.

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When the case made it to the Supreme Court, the court ruled assistance of counsel is “a fundamental right essential to a fair trial” and necessary to safeguard of liberty.

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him,” the ruling stated. The court called this “an obvious truth.”

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With that landmark case, the U.S. Supreme Court further defined the Sixth Amendment and all Americans’ rights, unanimously holding that states must provide counsel to accused criminal defendants who cannot afford to hire their own attorney.

That Judge Jackson served as such an attorney is a testament to her qualifications as a justice. It’s all the more important considering the Supreme Court has never had a justice who had formally worked in this role.

The American people, and the U.S. senators elected to serve them, should reject critiques of Jackson for her past work as a public defender, not just as assault on the integrity of this distinguished and worthy nominee, but for the implication that the right to fair trial is somehow not integral to the American system of government. In fact, this right is foundational to the American Constitution and essential to the guarantee of due process of law for every person in this country.

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