It would matter in the sense that the court would be 5-4 conservative instead of 6-3 conservative. Yes, Republicans would have another hissy fit, there would be a greater chance of a 50/50 split instead of 53/47, and the possibility of losing Manchin or Sinema. But unlike when RBG died, Breyer still being there would mitigate the risk of those things happening.
Of course this is hypothetical and I don’t really expect Thomas or one of the other conservative justices to die in the next few weeks.
Easily. Even the homeless have the right to not be searched without probable cause. If the amendment said that every person has a right to a house in which they can store their effects without fear of their being searched, then you might have a point, but it doesn’t.
But if you look at Gideon v. Wainwright, much was made about the disparity about how a poor person could not afford a lawyer but a rich person could.
That is the criticism of the Warren Court. A rich person can afford a house or can afford private security that prevents a person (or the police) from knocking on your front door, or getting close enough to hear an argument or toilet flushing to manufacture probable cause. Their opinions were worthless and inconsistent and have left society with a hodgepodge of “protections” which have turned out to be worse than anything before.
Because #2 is the best way to provide due process?
The US criminal justice system is based on the proposition that it is better for 10 guilty people to go free, than for 1 innocent person to be wrongly convicted. Your option #1inherently cannot put that into full practice by its very nature.
The Warren court was, by and large, an unconstitutional mess, but Gideon v. Wainwright is one of the very few things that they got correct.
Why not an O.J. type Dream Team, with investigators and paralegals and 24/7 staff, for an indigent defendant? A rich person can afford it, so why shouldn’t the state provide it? And why is that in the Constitution?
This type of statement is instructive when we are discussing constitutional theory. Whether and to what level the playing field should be equal between rich and poor in the legal system is an interesting political question, but one which the Constitution has nothing to say. Observing that the Constitution takes no position on it does not mean that the observer believes that such a situation is good.
Sort of the same comment as above. Gideon held that as a rich person could afford to pay for an attorney, the Constitution requires that the government provide an attorney for indigent people. Using that logic, as OJ can pay for a Dream Team, why doesn’t the Constitution require that?
If seeking the truth is really the function, I think the totality of the Warren Court’s jurisprudence has messed that up incredibly, far beyond a right to representation. What it has done is effectively not allow him a voice at all as he must plead or else face a draconian penalty.
If we want to make the system more equitable to rich and poor, we require all defendants to use a public defender. Without being able to hire additional defense attorneys. The public defender’s office would get much better funding in that environment.