In the next day or two, I hope to write up a reaction to the oral arguments. Right now, unfortunately, I’m very busy and can only give a summary.
I. PETITIONER’S ARGUMENTS
Things got off to a very rough start for Seth Waxman, the counsel arguing on behalf of Mr. Turner. Within the first few seconds, he was interrupted by Justice Scalia suggesting that he had misrepresented just how limited the right to counsel was. Justice Alito was quick to jump in, asking Mr. Waxman how siding for Turner would not create an imbalance, as respondents suggested in their merit brief, between indigent plaintiffs and indigent defendants. Justice Scalia seemed to latch on to this line of argument, asking if it wouldn’t be a better idea to argue for counsel in instances where one had been provided to the other side. Mr. Waxman was willing to agree that this would be fair and quick to suggest that a very limited number of cases would require the court to provide counsel.
Justice Ginsburg then brought up another issue: scope. She asked if petitioner was arguing for counsel only in child support instances or with civil contempt in general. Mr. Waxman answered that a broader categorical right for counsel when incarceration was a possibility was the correct path. Justice Kennedy wondered if this would extend to witnesses refusing to testify. For example, if an indigent witnesses refuses to testify and the judge order the “bailiff, [to] take him out until he complies” would this instance require appointed counsel? In response, Mr. Waxman suggested that this should properly turn on the difference between direct and indirect contempt. He then returned to Justice Ginsburg’s question and suggested that if he had to advance a more limited rule it would certainly turn on the affirmative burden placed on a defendant to show indigence or face jail. In other words, it should be dispositive that the prima facia case has been made and the defendant is presumed guilty unless he shows otherwise.
Justice Sotomayor seemed to wonder if the appointment of counsel was really necessary, asking Mr. Waxman to explain why a defendant couldn’t answer the questions necessary to show inability-to-pay as a defense.
Justice Roberts asked if the petitioner’s case would be weaker had the burden been on the plaintiff to prove his ability to pay. Mr. Waxman noted that it probably would be more difficult but that such a shift in burden would not defeat a need for counsel.
Justice Kagan hinted at some sympathy, asking, “suppose the Court looks at this record and thinks this is a broken system and a violation of due process, but requiring a counsel in every case may go too far, and there may, in fact, be alternative procedures that a State could adopt that would comply with due process. And I know that this is not your submission, it’s instead the Solicitor General’s submission, but if pressed on that point, what procedures do you think would be capable of giving a person in this situation a fair shake of it?” To this, Mr. Waxman claimed that there would be none in the current adversarial set-up.
Ever the originalist, Justice Scalia wanted Mr. Waxman to identify the earliest case that would indicate a right to counsel for someone facing incarceration due to contempt. While Mr. Waxman had no precedent, he did appeal to Justice Scalia’s interest in history by laying out some of the background behind contempt proceedings and when counsel was provided. Following this, Justice Ginsburg and Justice Scalia inquired about whether this appointment of counsel should require the “full dress” of criminal procedure. Justice Scalia quipped that the civil/criminal distinction was “an illogical [one].”
Justice Alito seemed on board with the Solicitor General’s suggestion that a right to counsel may not always be required and that other alternatives may exist. Yet it was Justice Ginsburg that asked perhaps the most interesting of questions. She suggested that Lassiter showed us we do not always supply counsel and that these decisions (in that case it wasn’t contempt but losing custody of the child) should be case-by-case. Accordingly, if such a method was alright for depriving a mother of her right to see a child, why would it not be alright for this context?
Before getting into a satisfying answer, Mr. Waxman reserved the balance of his time.
II. SOLICITOR GENERAL’S ARGUMENTS
While Justice Kagan had inquired about if alternatives to counsel might satisfy due process during petitioner’s arguments, she pressed Ms. Kruger (arguing for the government) why anything short of counsel would suffice. Indeed, she suggested that the government’s list of alternatives were “anemic.” Ms. Kruger responded by explaining different possibilities that staes have taken and suggested that what was fundamentally required is that the defendant actually be able to have the keys to his jail cell— a reference to the adage that civil contempt is not punitive because a defendant can release him or herself by complying with the court order. Such an adage proves problematic when the defendant is indigent and the key he is said to possess is money.
Justice Sotomayor wanted a clearer understanding, nevertheless, of what a State procedure would look like. Justice Scalia suggested that perhaps the right thing to do would be to make sure the judge him or herself was satisfied that there was a willful failure to comply with the orders (here, to pay child support). Ms. Kruger replied by suggesting the issue lie with retrospective versus prospective intent and arguing that the question here is a prospective one. Justice Scalia seemed satisified with this but before questioning continued, Justice Roberts asked Ms. Kruger to clarify her position on the question presented. Her response was that South Carolina did not act unconstitutionally here…a strange answer for a party supporting reversal of that State’s decision.
Justice Ginsburg asked Ms. Kruger if there was a particular state employing a model she would suggest to the court for alternatives to providing counsel. Ms. Kruger responded in the negative but suggested states like New Mexico, which have social workers inquire about finance then determine if the case should be forwarded on for possible contempt, illustrate an effective approach. In response to this Justice Ginsburg wondered if an aid that was not a lawyer but knew the system would be an appropriate person to help an indigent defendant. Ms. Kruger responded that she thought that would be a proper approach. Continuing on this, Justice Ginsburg and Ms. Kruger discussed what a form might require, if it were used to review a defendant’s ability to pay.
Justice Kagan was still interested in the nature of the system, however, and wanted some elucidation about the frequency with which the State as opposed to the mother is proceeding against defendants. Ms. Kruger noted that the State is often proceeding and represented by either a lawyer or other official such as a caseworker. With that, Ms. Kruger’s time elapsed.
III. RESPONDENTS’ ARGUMENTS
Mr. Bibas, for the respondents, was quick to lay out both points. First, that the case is moot and second, that a categorical right to counsel is not necessary to satisfy due process. Up to this point, the jurisdiction had not been mentioned whatsoever.
But, as I predicted, the jurisdiction issue didn’t receive sympathy. As he began to explain why Mr. Turner’s case was not capable of evading review, Justice Ginsburg asked why it should matter that Mr. Turner did not get a stay since the South Carolina Supreme Court granted his case after he was released from jail. Justice Roberts added that states have different concepts of mootness than the Federal court system and their understanding of whether Mr. Turner’s case was moot should control here. To this, Justice Sotomayor asked why Mr. Bibas would expect South Carolina to grant a stay if they saw no sixth-amendment issue and, under that scenario, how Mr. Turner could ever evade mootness. She asked Mr. Bibas if he could point to any cases where South Carolina has granted a stay in child support cases.
Though Mr. Bibas made several attempts to explain, pointing to a somewhat close South Carolina case, he was stopped by Justice Kennedy wanted to move to the substantive issue. He asked if both respondent and petitioner’s claims could fit in a Matthews v. Eldridge framework. While Mr. Bibas was hesitant to say that, he leaped at this opportunity to address a question Justice Kennedy had asked of Mr. Waxman. Here, Mr. Bibas suggested that an outcome for Mr. Turner would create a broad right beyond child support that would apply to “tnes of thousands of immigration and extradition cases.” He also suggested that ruling for Mr. Turner would create “massive change” and that a trial judge would need to know ahead of time whether a criminal or civil set of procedural rules applied to the case at bar.
Justice Ginsburg was ready to tackle this point. She asked if it wasn’t true that most states hold this as a constitutional right. Mr. Bibas suggested that it wasn’t and described that 15 states consider it to be, and 11 states by a state instrument (statute, rule, etc…), but that 17 do not view it as a constitutional requirement and the other seven are ambiguous on the point. Yet Justice Ginsburg was not to give up, asking if it wouldn’t really just affect a very small portion of the cases coming through family courts…the ones where defendants were truly indigent. Justice Kennedy came to Mr. Bibas’ aid by saying “I suppose you could say that in – in advance that the judge and the appointing authority simply wouldn’t know.” Mr. Bibas agreed with this assessment adding that this was important to protect judges since they would need to know if civil or criminal procedural rules applied before entering the courtroom.
Justice Sotomayor was the first to ask for the respondents’ position on the government’s approach. Mr. Bibas called the governments suggestions “interesting” but undeveloped and did not take a position. Justice Scalia then asked him to define what due process protections South Carolina was not affording to defendants like Mr. Turner. As it turns out, this was a lead-in to a comment by Justice Scalia that the government had essentially tried to inject a new question into the case…one not up for decision by the Court.
Justice Sotomayor asked Mr. Bibas if perhaps the question presented was already answered, noting that the phrasing was important. While Mr. Bibas disagreed about how the question should be read, Justice Sotomayor said they would handle it later. Justice Scalia came to the aid of Mr. Bibas in suggesting that the right to counsel may be too specific…that if minimum due process was not afforded, procedures must be changed to afford due process…procedures perhaps more broad than a right to appointed counsel.
Justice Breyer stepped in to ask a question of what happened, factually, and wondered why the state would put him in jail if “he ha[d] no job.” When Mr. Bibas explained that the judge did not believe Mr. Turner, Justice Kagan interjected that there wasn’t really any indication the judge took Mr. Turner’s financial considerations seriously; instead, ignoring the issue. As she put it, “Well, we couldn’t really tell could we, Mr. Bibas. Because he completely ignored that question. … Mr. Turner talked about how he had no money and was disabled. The court completely ignored him. The court also ignored the questions on the form for the order of contempt about whether he had any money. The court ignored that as well.”
As Mr. Bibas tried to craft a resonse, Justice Scalia stepped to his aid, wondering what the significance of such a discussion was and saying it wasn’t relevant to the question presented. Yet Justice Breyer wanted to remain on the general topic and said it could have an impact on how he, even if nobody else, decides the case. While Justice Scalia resisted, Justice Breyer pressed on: “What I’m trying to figure out…is this: What, in general, is the fairness of such situations in where the woman is normally the one with the child, the man is normally the one who doesn’t pay? Is it true, for example, that in most such situations across the country, the woman has a lawyer but the man doesn’t?” Mr. Bibas was unaware of specific studies or information on that point.
Then, an interesting question posed by Justice Roberts: “Do you know why we’re not hearing from the State of South Carolina?” Specifically, he wanted to know why they weren’t present to defend their procedures. Mr. Bibas noted that while it might be because their interest in the matter was no longer a direct one, he was not sure specifically.
Justice Scalia wanted to return to the mootness question, asking if there was precedent arguing in the manner that respondents do for why the capable of repetition standard was not satisfied. Though Mr. Bibas started to answer, Justice Roberts suggested that he was just wrong, noting that acquiring a stay cannot possibly be the requirement since “[the Court has] cases applying the rule that this is capable of repetition yet evading review. If the rule were you have to get a stay, we wouldn’t have any of those cases.” Mr. Bibas attempted to distinguish this case from the typical ones using the standard (election and abortion cases for example).
There was a bit of return to questions Justice Breyer and Ginsburg asked before Justice Alito seemed to raise his own concerns about the total lack of inquiry by the family court judge regarding Mr. Turner’s claims of being indigent. Then Justice Kennedy interjected his desire to know what factors, if any, should be laid out in the opinion. Justice Scalia added onto this but when Mr. Bibas began to suggest possible relaxed procedures Justice Kennedy wondered if “all those things are properly before us.”
Mr. Bibas returned to the point of the child support context as being relaxed and informal and noting that all previous situations where the Court had deemed counsel necessary were ones much more formal and demanding in nature. With that point, he ended his arguments.
On his rebuttal, Mr. Waxman laid down three points: (a) how complex proving inability-to-pay really is, (b) how much of a burden will providing counsel be on the States, and (c) if the Utah and New Jersey models would be a way to “square this circle.”
Mr. Waxman then pointed to issues such as the drug use, attempt to get a job, disability, etc… Mr. Turner explained as legal questions rather than factual questions. In other words, how do the answers to those affect a finding of indigent status? That such questions arise is evidence that the matter cannot be easily resolved with naught but a form the defendant fills out.
Then Mr. Waxman moved on to the burden on the state, noting that 15% of South Carolina’s imprisoned population are non-custodial parents that have not paid child support. Mr. Waxman noted that this was costing between $13,000 and $17,000 a year per defendant. Following this, Mr. Waxman noted that South Carolina is already paying $72 million to the U.S. Government for failure to comply with requirements of the Federal program.
The last question of arguments (and only question on rebuttal) was by Justice Alito, who asked if Mr. Turner would automatically be vindicated had the judge had credited a form showing Mr. Turner was unable to work and was indigent. Mr. Waxman said yes, qualifying that a mere assertion is “not the marshalling of evidentiary support that’s required to carry the burden.”
With that, Mr. Waxman’s time elapsed and the case was submitted at 11:12 a.m.