The concern isn’t uncertainty. The concern is that you have a constitutional right to counsel of choice. It isn’t a policy concern. It’s a fundamental right. Fundamental rights trump the policy preferences of judges, even paleo-conservative ones like Alito the Cave-Man.

Should we describe Justice Scalia as a “Sixth Amendment liberal”?

Seriously, what makes this opinion even more interesting is Scalia’s silent acquiescence in Washington v. Recuenco, also issued today, which holds that Blakely errors, unlike Gonzalez-Lopez errors, (both are Sixth Amendment errors) are NOT structural.

Side by side, these cases expose some of the serious conceptual difficulties with the application of the harmless error doctrine to constitutional violations. For example, Gonzalez-Lopez suggests that a touchstone for when harmless-error analysis applies is the difficulty of assessing the effect of the error. Since there’s no way of knowing how the case would have been decided with a different defense lawyer, automatic reversal is appropriate. But why doesn’t this reason apply equally to Blakely error, where a judge (rather than a jury) determines sentencing factors by a preponderance of the evidence, rather than beyond a reasonable doubt?

If it’s appropriate to have appellate judges deciding what a jury would have decided had it been presented with a factual issue in the first place, why is never appropriate for appellate judges to determine what a judge or jury would have decided with a different defense lawyer on the case? In either scenario, some cases will require more speculation than others. It’s not immediately clear to me why having the wrong lawyer interjects so much more uncertainty than having the wrong fact-finder that per se reversal is appropriate in the former situation but not the latter.