Some Optimism after Turner

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5 Responses

  1. Laura Abel says:

    This thoughtful post will help frame the case for me and many others. As it points out, the Court reversed, demonstrating its willingness “to do something about the rampant unfairness that passess for justice in too many of the lowest trial courts.” Too bad the Court’s action won’t actually help Mr. Turner, who had completed his sentence by the time the case reached the Supreme Court.

  2. Michael Olenick says:

    This is a landmark decision that I believe will have ramifications not only in family court but, arguably, in foreclosure court in state’s that have judicial foreclosures. That is because, like family court, foreclosure court is always in equity.

    Somebody could argue that the right to counsel only applies when incarceration is involved — assuming the other party is represented — but the due process clause is unambiguous: “life, liberty, or property…” In foreclosures, the bank is always represented by counsel, the overwhelming majority of defendants are pro se, and — as the ACLU decisively illustrated in their recent due-process filing with its exhaustive appendix — the pro se defendants are routinely steamrolled.

    It may even be more applicable in foreclosure court

  3. I am also optimistic about the Turner decision but the question is, how much did the progressives have to give up to get Kennedy’s vote? As always, Justice Kennedy is the key. As in the prison overcrowding case, there is reason to hope that he understands what is happening in the civil courts of America. Parental rights and evictions involve fundamental rights. But the court is lost in analytical fog. Future cases may be limited to criminal prosecution or jail confinement for contempt. The second troubling rationale is the complexity issue. If complexity turns out to be one of the standards, it will leave a great many litigants unrepresented, wandering in the judicial system. The most disturbing aspect is the court’s comfort with substitutes for lawyers. I see this as a federalist society success in unrelenting attacks on the legal profession for thirty five years. It is simply unacceptable to put together a synthetic substitute for legal advice, lawyers’ pleadings, lawyers’ strategies, lawyers’ counseling and lawyers’ abilities to resolve matters by negotiation.

    Despite these obvious questions, it is clear the progressives are fighting for something in this opinion. They are attracted to pragmatic administration but there is hope that Kennedy and the four, presented with the right case, will do the right thing. So the decision at bottom may begin to reduce the space between law and justice.

    Jim Brosnahan

  4. Joe says:

    “the space between law and justice”

    The ruling underlines that sometimes they need not be different things. Justice — see the Preamble to the Constitution — can be part of our law.

  5. Bob Boruchowitz says:

    I agree with Marty Guggenheim that there is some optimism in this decision.
    I am planning to cite it in my motion to reconsider in a Washington State Supreme Court case reversing a court of appeals decision providing counsel to a child in a truancy proceeding.