The Hobbesian Constitution

In two new essays on Right Reason, Hadley Arkes takes Justice Kennedy to task for his majority opinion in Lafler v. Cooper and finds that he has taken on the premises of that justly decried political philosopher Thomas Hobbes.

The background of the case:  Anthony Cooper pointed and shot a loaded gun at Kali Mundi, missed, and as she fled, he shot and hit her three times, none being fatal.  The prosecutors brought five charges on Mr. Cooper, but they ultimately offered him a plea deal consisting of serving 51-85 months behind bars, which his counsel advised him not to take.  On the first day of trial, he was offered a lesser deal, and at the advice of lawyer, he rejected that as well.  Cooper was ultimately convicted on all counts and received a sentence of 185 to 360 months in prison.   Cooper, taking this case all the way to the Supreme Court, argued that his right to counsel meant the right to effective counsel, which, in his case, meant the first plea bargain.  Justice Kennedy in a 5-4 majority agreed that this was what the Constitution meant in this instance.  For Arkes, this displaced the moral foundations of the law:

In place of those principles, grounded in the very axioms of justice, Justice Kennedy has offered now the Hobbesian version: Higher than a fair trial, higher than a dispassionate and accurate judging of guilt and innocence, is the interest of any man in avoiding punishment, no matter how justified that punishment may be. "The fact that [Anthony Cooper] is guilty," wrote Kennedy, "does not mean he was not entitled by the Sixth Amendment to effective assistance or that he suffered no prejudice from his attorney's performance during plea bargaining." And his right to that "assistance" may override the verdict on the serious wrong he had in fact committed. 

Arkes notes that that great doubter of the natural law, Justice Scalia, thought otherwise:

What the majority had done, in Scalia's reckoning, was to invert the moral ordering of the legal system: In Kennedy's construal "constitutional rights are infringed by trying the defendant rather than accepting his plea of guilty." Even if lawyers had made massive mistakes, those mistakes would be overborne if the trial itself offered a rigorous test of the evidence and a justified judgment on innocence and guilt. As Scalia crystallized the matter, "Anthony Cooper, who shot repeatedly and gravely injured a woman named Kali Mundy, was tried and convicted for his crimes by a jury of his peers, and given a punishment that Michigan's elected representatives have deemed appropriate."

Justice Scalia is still continuing the tradition of doubting the natural law while, at the same time, talking and making judgements rooted in the natural law, of rights and wrongs, of things just and unjust.  The prospect of him possibly retiring from the Court in the next four years makes the coming election more important than ever.

And please read both essays.  Hadley Arkes has a lot to teach us.