0:00:00.4 S?: Thank you, gentlemen. The case is submitted. We'll hear arguments next in Lassiter against the Department of Social Services.

0:00:10.6 Leon: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon and Michael are joined by special guest, Jay Willis, to talk about Lassiter v. Department of Social Services. At issue in this case is whether a person ought to have a lawyer appointed to defend them in a civil proceeding, in this instance, a parental rights case. The petitioner in Lassiter was a single mother, fighting to keep her child out of the foster care system, but without a lawyer to plead her case, she was unsuccessful, even though there was a viable alternative to foster care.

0:00:45.9 S?: The grandmother in this case, who appeared at the termination of parental rights hearing, stated that she was willing to take this child and take care of the child. She is presently taking care of the petitioner's other four children, and certainly if the state had placed this child with the grandmother, then this child's parent-child relationship could have remained intact.

0:01:11.6 Leon: The Supreme Court ruled that there is no right to an attorney in a civil case, further stacking the deck against people who have already been failed by the system. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:30.0 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have conducted a hostile takeover of our Constitution, like Elon Musk is doing at Twitter. I'm Peter.

0:01:41.7 Michael: I wish the Constitution could give the Supreme Court Justices a poison pill.

0:01:45.2 Peter: Yeah, as you can tell, I am here with Michael.

0:01:49.0 Michael: Hey, everybody.

0:01:50.6 Peter: And Rhiannon.

0:01:51.8 Rhiannon: Hello.

0:01:52.8 Peter: And our friend, Jay Willis.

0:01:54.8 Jay Willis: Hey, everyone.

0:01:55.5 Peter: Jay, now the editor-in-chief of Balls and Strikes.

0:02:00.5 Rhiannon: Whoo.

0:02:01.8 Peter: You've been on our podcast before.

0:02:03.0 Jay Willis: That's right.

0:02:03.8 Peter: Back in your days with The Appeal, but now you're editor-in-chief at Balls and Strikes, a publication that is designed to sort of rip-off our podcast and back it with George Soros' money, from what I can tell, it's just a guess.

0:02:21.0 Jay Willis: Yeah, that's right.

0:02:22.4 Peter: And turn it into a sort of a periodical, an online magazine.

0:02:27.2 Michael: A zine.

0:02:28.5 Peter: Is that an apt description?

0:02:29.3 Jay Willis: Yeah, all of that tracks. It's also great to be a repeat guest here, and I do have to say, you'd shit Mondaire Jones.

[laughter]

0:02:39.4 Rhiannon: Yeah, I was going to say, our first repeat guest, that's an honor.

0:02:43.0 Michael: Is he?

0:02:43.5 Peter: No, Josie, Josie.

0:02:44.7 Rhiannon: Oh, that's right. Okay.

0:02:45.9 Jay Willis: Yeah, well, you'd shit Josie also. I should say also, if Mondaire Jones' people are listening, Congressman, I'm super kidding, please don't stop writing op-eds for me. Need those for the traffic.

[laughter]

0:03:01.7 Peter: Pathetic.

[laughter]

0:03:03.5 Peter: Good to have you on, Jay. We're in a time in our republic's history where white male voices are so important, so needed.

0:03:15.5 Rhiannon: Absolutely.

0:03:15.8 Peter: And we're here to give you a platform.

0:03:18.8 Jay Willis: I appreciate it.

0:03:19.8 Peter: Today's case is Lassiter v. Department of Social Services. This is a case about your right to an attorney. We just covered this issue in our Strickland v. Washington episode, with a key difference, that case was about your right to an attorney in criminal cases, this is about your right to an attorney in other situations, specifically in custody hearings or other hearings concerning parental rights.

0:03:49.9 Peter: This case is about Abby Gail Lassiter, a poor black woman. The story of her life and interactions with the legal system is a non-stop, one after another, series of examples of institutional inadequacy. I'll try to keep it simple for now. One of her children, William, was taken from her by a social worker. Doctors said the boy was suffering from malnutrition and other ailments, and on that basis, the state initiated proceedings to remove him from Abby's custody.

0:04:23.0 Peter: For reasons we don't know for sure, she missed the hearing and custody was awarded to the state. Shortly after, Lassiter is tried and convicted for a murder that she may well have not committed, and then the state attempts to take away her remaining parental rights, vis-à-vis her son William. Lassiter appears for the hearing without an attorney, and of course, completely unprepared, having recently been in jail. The hearings are rife with judicial misconduct and errors, and her parental rights are ultimately terminated. And the question is, should Lassiter's constitutional right to due process mean that she should have had an attorney present in that hearing, an attorney appointed for her by the state? And the Supreme Court says, "No."

0:05:17.6 Rhiannon: "No, no, no."

0:05:18.5 Peter: Of course not. Otherwise, there'd be no episode.

0:05:22.0 Rhiannon: [laughter] That's right, here we are.

0:05:23.7 Peter: "Because you don't have," according to the Supreme Court, "a right to an attorney unless your liberty is at stake." In other words, unless you might go to prison.

0:05:33.0 Michael: Your physical liberty.

0:05:34.5 Peter: Right.

0:05:34.7 Rhiannon: Yeah.

0:05:34.9 Peter: Right. So Rhi, hit us with the saddest story I've read all month.

0:05:41.7 Rhiannon: That's right. It's sad story time. So gear up, listeners, just a note, take care of yourselves while listening, this case is about systemic failure on a lot of levels, and there's some sad stuff regarding Abby Lassiter's life in here. So like Peter said, Abby Lassiter was a black woman who grew up in poverty in Durham, North Carolina, in the '60s and '70s. She had her first child when she was just 14 years old. And she had the support of her mother, Lucille, throughout her life, but certainly no institutional or systemic support over the course of her life outside of her family.

0:06:16.6 Rhiannon: Ms. Lassiter would go on to have five kids, but the parental rights that are at issue in this case are her parental rights to just her fourth child, William. So baby William was sickly, and when he was eight months old, doctors at the local hospital asked the Durham County Department of Social Services to follow up with the Lassiter family, because William had missed some doctors' appointments. A social worker went to their house and found the kids there, being taken care of by Lucille, the grandmother. Abby Lassiter wasn't home at the time.

0:06:47.5 Rhiannon: The social worker told Lucille that he would take baby William to his appointment while she took care of the other kids, and even though Lucille understood that the social worker would be bringing the baby back, that did not happen, they took baby William. Doctors said that William was being neglected, so the Department of Social Services sought to remove him from the Lassiter home. Now, Ms. Lassiter missed the first hearing on these removal proceedings, but it's not clear that she ever received notice or knew of the date or had any idea whatsoever what was happening legally and how she could fight it, how she should approach it.

0:07:25.8 Rhiannon: So without her there at that first proceeding and without any advocacy on her behalf, the judge gave custody of William to the state in June, 1975. Now, in December of that year, a few months later, Ms. Lassiter visited William, but shortly thereafter, she was arrested and convicted of the murder of her neighbor. Now, we should pause here to say, obviously, we don't truly know what happened with the neighbor, but it is important to note, like Peter said up top, that this conviction is pretty dubious. Her lawyer in the criminal case was super inexperienced, made a bunch of mistakes, the state failed to turn over exculpatory evidence during the trial, namely a confession by somebody else.

0:08:09.1 Peter: Whoopsie.

0:08:09.6 Rhiannon: Yeah, there are problems with this conviction. At any rate, she was sentenced to 25 to 40 years in prison. So after she's sentenced to prison, a new social worker comes to visit Abby Lassiter in prison, and she asked her to give up her parental rights to William. Remember that Ms. Lassiter's four other children are with her mother, Lucille, and so Abby Lassiter asked that William be placed with his grandmother and his siblings, but the state refused to let Lucille keep William, even though she was already taking care of a child even younger than William. So Ms. Lassiter is told in April 1978 that the hearing regarding termination of her parental rights would happen four months later.

0:08:52.1 Jay Willis: Yeah, so just going into some of the brutal facts in this case, there's one anecdote in here, this is a Law Review article about this case written I think about 10 years ago, there's an anecdote about Abby Gail running into William and his foster parent at the grocery store, and William like a small child trying to get out of his foster mother's cart and leave with his biological mother and siblings and obviously not being allowed to do so. Like imagine all of this trauma that's happening to you, and then you see your kid, just like while shopping for produce. It's a gutting case, every fact that comes up in the case is subsequently more gutting.

0:09:35.2 Rhiannon: Yeah, and so eventually she gets to this hearing to terminate her parental rights for William, but she doesn't have a lawyer there, no lawyer is appointed. She had actually told a guard at the prison that she was at that she wanted help with the termination process, but nothing happened, and she came to the hearing alone and obviously utterly unprepared for how the proceeding was going to play out, like legally and otherwise, she has no idea and no preparation.

0:10:03.7 Rhiannon: And so kind of predictably, the hearing was a disaster for her, the judge didn't give her any extra time to find an attorney, even though she had been in prison, and the evidence that came in against Ms. Lassiter was not just uncontested by somebody representing her, but it was also a joke in terms of the rules of evidence. The hearsay evidence was allowed in, the social worker who had only met with Ms. Lassiter one time in prison, was allowed to testify, and she testified about things for which she had no personal knowledge. It's kind of a basic rule of evidence that people testifying must have personal knowledge about what they're testifying about.

0:10:42.4 Rhiannon: Ms. Lassiter's mom, Lucille, she testified, but her testimony was not given any credit by the court, and these are all procedural and substantive matters that a lawyer would have helped with, right?

0:10:53.7 Peter: And can we note that her mom testified that she would be willing to take custody of the child and take responsibility for any parenting moving forward.

0:11:03.5 Michael: Right, and some of the hearsay evidence that was let in was just like, "Yeah, but we talked to some people at at their church, and they were like, 'I don't know if she could handle it.'"

0:11:11.8 Rhiannon: Right, right. Just completely...

0:11:13.5 Michael: What the... Who are these... Who the fuck are these people, what do they know? It's absurd. It's absurd.

0:11:21.0 Rhiannon: Yeah, so despite all of this, despite Lucille saying that she could take William, and that she already had the four other kids, in the end, the court terminated Ms. Lassiter's parental rights to William. So this case gets appealed up to the Supreme Court, and what the Supreme Court is answering is the question about whether or not Ms. Lassiter should have been appointed an attorney at this parental rights termination proceeding.

0:11:50.1 Peter: The legal question is whether Lassiter's right to due process under the Fifth and Fourteenth Amendments means that she must be afforded an attorney here. The Sixth Amendment says that you have a right to an attorney in criminal trials, but that's not directly relevant here, because this isn't a criminal trial, this is technically a civil proceeding about whether or not Abby will retain her parental rights to her son. The Fourteenth and Fifth Amendments provide a general right to due process, which may include a right to counsel depending on the situation, so that's what we're hashing out here, whether Abby is constitutionally owed a lawyer under the Fifth and Fourteenth Amendments. And the court, in a 5-4 decision written by Justice Potter Stewart, first-time appearance on the pod, I believe.

0:12:44.7 Rhiannon: I think so.

0:12:45.7 Jay Willis: Long-time listener.

[chuckle]

0:12:48.0 Peter: The Court says No, there is no inherent constitutional right to an attorney unless you are at risk of losing your personal liberty. So if you're at risk of going to jail or prison, you get an attorney, but if you're not, you don't, at least not automatically. So that's sort of part one of this decision, and let's take just a quick step back. The Court is saying that you only have an inherent constitutional right to an attorney if you are at risk of losing your personal liberty, and again, what they mean is just going to jail or prison.

0:13:25.4 Peter: And the Court does not contemplate, does not even analyze whether taking away a child might constitute a loss of liberty, at least for the child, right, who was being forcibly removed from his family and placed into the custody and control of the state, which again, not exactly like being taken to prison, but not so dissimilar either.

0:13:54.8 Rhiannon: Sure.

0:13:55.9 Peter: And then also, it might be worth noting that part of your liberty involves your right to parent your own child.

0:14:01.9 Rhiannon: Yes.

0:14:02.0 Peter: Right, like how intellectually stilted do you have to be to think that the definition of liberty is just like, your freedom to move around. Right. Is there anyone in their right mind who wouldn't perceive of having their child taken from them as an infringement upon their liberty.

0:14:20.4 Rhiannon: Exactly. Yeah, absolutely.

0:14:22.2 Michael: I'm not a parent, but I would venture that a lot of parents would choose prison over losing custody of their child.

0:14:28.9 Rhiannon: Absolutely.

0:14:29.0 Michael: At least for as a certain period of time.

0:14:31.4 Rhiannon: Yeah.

0:14:33.0 Peter: Yeah, I mean, that's one of the interesting parts of this is that the Supreme Court has at this point in time, when this case is happening in, I believe, '81, the Court has already held that any amount of prison or jail time being at risk is enough to afford you an attorney. So if you're risking a week in jail, you get an attorney. If they are going to take away your child for the rest of your life, you might not. Perhaps, perhaps a system that is not particularly coherent.

0:15:03.2 Michael: Look, if somebody tried to fucking take my dog away, I would risk pretty significant jail time.

0:15:08.1 Rhiannon: Right? Yeah.

0:15:10.1 Michael: Like I can only imagine what it's like to have your child taken from you. The idea that this is an interest that's vigorously protected by the Constitution and an important part of the liberty protected by the Fourteenth Amendment is just absurd.

0:15:24.9 Rhiannon: Yeah, it doesn't make sense.

0:15:26.2 Jay Willis: At the top of this opinion, the Court kind of yada yadas its way through its decisions involving the right to counsel, and when it identifies incarceration as the through line, sure, but I want to stress that that's just purely a policy decision, they even phrase it in the passive voice, such a right has been recognized to exist only where the litigant may lose his physical liberty, and it's like, yeah, has been recognized by you, you are the one who came up with this rule.

0:15:56.0 Rhiannon: Right. Y'all are making these rules.

0:15:58.1 Jay Willis: I think it's perfectly reasonable, like that's an understatement, to require counsel where liberty is at stake, but that could just as easily be a floor and not a ceiling. There's not some objective legal constitutional reason that cases where your liberty at stake is a floor. That's just purely the Justices kinda looking at the ceiling for a while and deciding what they think is important and what isn't.

0:16:22.6 Rhiannon: Yeah, exactly.

0:16:25.1 Michael: Yeah. And there is something I think about sort of... Obviously, we're talking about a single mother, black woman here. Whereas, I think today in modern political debates, this sort of interest is often come up in conservative circles as men's rights activists, divorced dads, who think like the custody of their children is like of utmost importance and the preference that's often given to the mother in family court proceedings is unfair and a violation of the Constitution, and blah, blah, blah. And so when it's like white men, wealthy white men, the conservative sort of position has evolved to one where like custody of the child is a very core concern, but when it was a single black woman in the '80s, of course, that calculus is very different.

0:17:23.5 Peter: So the next part of the opinion is the Court analyzing what due process is required in this particular hearing. The first part, again, it was basically saying, Look, there's no inherent right to counsel, but there still might be a right to counsel in this particular case, and the way they do this analysis is by using precedent from a case called Mathews v. Eldridge, which lays out three factors for analyzing whether someone has received due process in a given situation.

0:17:53.6 Peter: Those factors are the private interests involved, the government's interest, and the risk that the procedures used will lead to erroneous decisions. So the private interests and the government interest. That's all the interests that we're counting.

[laughter]

0:18:12.6 Peter: Comprehensive. So I think you can sort of just put that framework aside because it's pretty much meaningless and it's, all it's saying is the Court's going to vibe this out. The court says, Okay, so obviously a parent has an interest in parenting their child...

0:18:27.6 Michael: A commanding interest.

0:18:29.4 Peter: A commanding interest. And the government has a real but less intense interest in ensuring that children are cared for, and parental rights hearings can be pretty complex, so maybe sometimes you'd need a lawyer, so let's look at this case specifically and figure out whether there's a risk that if we don't give her a lawyer here that there would be a mistake made, right? And the Court says that it would not have made a difference if she had counsel or not, because the weight of the evidence showed that she was not interested in parenting the child.

0:19:02.5 Peter: Which is a completely asinine thing to say here, because first of all, the weight of the evidence is something that could be impacted by a lawyer being present. What evidence gets admitted is something that a lawyer might have an impact on, perhaps, whether or not a given witness is brought, whether or not a cross-examination takes place, a competent cross-examination takes place. If she had a lawyer, that lawyer could have challenged the government's evidence and presented new evidence in Lassiter's favor. That's the whole point of having a lawyer, right, that's like the number one thing.

0:19:40.2 Peter: It's insane to just say like a lawyer wouldn't have mattered here because the evidence against her was too great.

0:19:45.4 Michael: In the same breath, they're like, and, sure, there was some hearsay evidence that was improperly admitted. Well, how can you talk about the weight of the fucking evidence if you are conceding that the evidence itself was improperly admitted?

0:20:01.3 Peter: Right. Not to mention that, and this is something we mentioned in our Strickland v. Washington episode as well, why are we talking about whether she would have won or should have won? We're supposed to be talking about whether she got due process. The entire point of due process is that everyone gets it, no matter what you think the result would be, that's how you protect unfair outcomes. But the Court is instead doing the same thing they did in Strickland, where they're like, Well, look, before we figure out whether this lady deserves due process, let's figure out whether or not we like her, let's sort of just eyeball this and figure out whether or not we think she's cool, and then maybe we give her to process. It's just this completely backwards analysis.

0:20:51.2 Michael: Yeah, and one more point I want to make is, this is being written down in the pages of the Supreme Court Reporter, which to me is pretty compelling evidence that she is very interested in raising her child. I think an uninterested parent does not fight custody battles up to the Supreme Court. Like, what the fuck are we talking about here? It's not like she's like fucking just chilling in the rec room or whatever in prison, she's fighting this tooth and nail.

0:21:21.3 Rhiannon: She is doing literally everything that she can, yeah.

0:21:23.8 Michael: Literally everything within her power, it just reeks of bullshit, like just absolute bullshit.

0:21:30.7 Peter: The Court mentions that the proceeding is very simple, sort of basically saying, Well, it's a simple proceeding, there's no real need for a lawyer in a case like this, right.

0:21:38.1 Michael: Right, there was no expert testimony presented.

0:21:41.4 Peter: Right. After already mentioning that there was tons of mistakes, like hearsay evidence...

0:21:46.0 Michael: And that her defense was incompletely presented, which is like...

0:21:50.3 Jay Willis: Does seem like a problem.

0:21:50.9 Peter: And they're like also, yeah, the Department of Social Services did have a lawyer.

0:21:55.5 Jay Willis: Sure, sure.

0:21:58.7 Peter: Here's an important question that's not answered by the Court, has the Department of Social Services ever once showed up to one of these hearings without a lawyer?

0:22:05.6 Rhiannon: Yeah, exactly.

0:22:06.1 Peter: If not, perhaps a good question to ask why. And just to emphasize how little of a shit the Court cares about this woman's rights, there's an entire paragraph of the Court just sort of like going through the potential arguments a lawyer could have made for her one by one, and then just like hand-waving them away. To give you an example of how cavalierly the Court treats this, here's how they analyze the question of whether the grandmother could take custody. They mention that there is evidence that the child's grandmother had said she could not handle custody of another child. The source of that evidence, as Michael mentioned earlier, pretty tenuous.

0:22:45.0 Michael: Inadmissible hearsay.

0:22:47.4 Peter: Inadmissible hearsay. Now, there was also evidence that the grandmother was interested in custody and willing to take custody. Do you know what that evidence was? Her own testimony.

0:22:58.4 Rhiannon: That's right.

0:23:00.7 Peter: And the Court just waves that off, like it's inconclusive, like, sure, she says that she'll do it, but some of her friends at church seem to disagree, so who are we to figure this out.

0:23:11.9 Michael: At least according to this social worker, some of her friends at her church disagreed. Like we don't even have their testimony.

0:23:17.8 Peter: Right, it's wild. The entire opinion is just sort of a study in how poor people in the legal system are forced to justify themselves at every nodal point of their existence, every nodal interaction with the justice system. They are made to explain themselves in situations where any person of means would be given the benefit of the doubt, right. When someone is saying, I will take my grandchild in, and the Supreme Court is saying, No, we don't really think she means that.

0:23:51.9 Michael: She's raising four other kids, four other grandkids.

0:23:55.7 Peter: Who is Potter Stewart to doubt that she would do that? It's sort of unreal.

0:24:01.1 Rhiannon: Yeah, it's kind of like they are putting on trial, not just Abby Lassiter, but her mom too, that they're going into the weight of the evidence and putting their own racist and classist assumptions on what the evidence really is and discounting her, and then not even sort of contending with the inherent contradictions of this, she's raising four kids and completely competently, the state isn't moving to take those kids away.

0:24:32.2 Peter: And to make a point of contrast, the Court is openly questioning the grandmother's willingness and ability to take in this child by saying, Well, some people think she couldn't handle it. Maybe she's stretched too thin. You know, what I know for sure is stretched thin, the foster care system in North Carolina in 1981.

0:24:53.3 Rhiannon: Absolutely.

0:24:55.2 Peter: And at no point is it mentioned that that's the alternative, right. They sort of act like the seizure of this child from the parent is almost like inherently liberatory and positive, not talking about the fact that the state simply does not provide the resources to make that true.

0:25:16.0 Jay Willis: Yeah, when the majority says, well, obviously, the state has an interest here in the child's welfare, I read that and I was like, does it? Because we have like plenty of evidence that like, not so much.

0:25:27.4 Rhiannon: Yeah, yeah, good point.

0:25:29.1 Michael: This feels like a good time to take a break.

0:25:32.4 Michael: And we're back.

0:25:34.8 Rhiannon: So I think we should talk about the dissents. And Jay, I know you have some stuff to say here.

0:25:40.5 Jay Willis: Yeah, so there's two dissents in this case, one is good, the other is better. The first one is by Justice Blackmun, who takes the balancing test and just arrives at the opposite conclusion. He points out a lot of what we've discussed here, that this is a hearing, there's a judge presiding, there's formal rules of evidence and procedure. Hearsay is supposed to be inadmissible. This looks a lot like a trial, except that the person whose future is on the line doesn't have a lawyer there.

0:26:11.7 Jay Willis: He also talks about how if you're a parent whose parental rights are at stake, you can't dispassionately represent or defend yourself in this proceeding. You can't be expected to do that. One of the reasons that you have legal representation, among many different reasons, is it's hard to do that job effectively if you're really emotionally invested in that outcome. You're in a forum with lots of jargon with which you're not familiar. You're trying to prove your own parental ability to standards that you don't necessarily understand to a judge's subjective satisfaction. And then Blackmun also talks about this sort of obvious point that a lawyer, any lawyer, would have objected to this like baseline bar exam level hearsay. One of the many things I think that sucks about Lassiter is that it really goes through all of the facts and really makes a powerful case for just the opposite conclusion than the one the majority thought.

0:27:10.8 Rhiannon: Yeah. Yeah. I think that's right.

0:27:13.8 Michael: When I was reading it the first time when it's going through the elements, sort of at the conclusion of its argument, I was like, Wait, that came out the other way, 'cause they're like, Yeah, sure, hearsay. Yeah. They're going through, like it reads like they're coming to the conclusion that, of course, she needed a lawyer present. And then they're like, Yeah, but against all that is it just really seems like she's not a good parent and the grandmother wouldn't be either.

0:27:40.5 Rhiannon: Right. And we've already decided that, and that's that. It's completely results-oriented.

0:27:44.5 Jay Willis: Yeah.

0:27:45.7 Michael: Before we continue I also want to note, like you mentioned, Jay, the person whose future's at stake here isn't represented, but there are actually two people whose futures are at stake and neither are represented, right? And there is a mechanism for the child having representation as well, a guardian ad litem, and there are provisions for that in North Carolina law in certain situations. But that didn't happen here either, right? There wasn't somebody looking out just for William, nor was there someone looking out just for Lucille. Neither of them had someone with their interests front and center.

0:28:24.3 Jay Willis: The second dissent is from Justice John Paul Stevens. It's a lot shorter and a lot more based... [laughter] It just basically rejects the balancing test framework entirely. He's like, There's no government interest that can justify terminating parental rights without counsel. You can't just look at a right and be like, Well, this is pretty expensive. And I think it highlights a real problem with balancing tests in the context of the Supreme Court in general, is that they're always going to be subjectively applied by judges, by and large fancy people who are never going to be caught in a situation like this one, and who can't imagine what it's like to have the state try and break up your family.

0:29:09.1 Jay Willis: Blackmun's dissent, the first one, it makes good points, but it also accepts the premise that a balancing test is legitimate here. Stevens is the only one who's like, This is not a cost-benefit analysis about whether this woman's right to raise her child is important or not. And it reminds me a little of when liberal justices try to use the tools or the language or the logic of originalism to get to a non-reactionary result. And when it works, great, but when it doesn't, you're just conceding the legitimacy of a framework and sort of reifying a perspective that way more often than not is going to lead you to gross bad wrong outcomes.

0:29:52.2 Michael: Yeah. And even when it "works," it rarely convinces anybody on the other side of the aisle.

0:30:00.2 Jay Willis: Oh, I heard conservatives love [0:30:00.2] ____. [laughter]

0:30:04.2 Peter: The Stevens dissent is making a strong point, in part because a balancing test isn't appropriate here, for the very simple reason that the government cannot explain what the harm to them of her having an attorney would be. That's what a balancing test should look like: What's the harm to the government of having an attorney versus the benefit to her in having an attorney, and you weigh those against each other. But what's the harm? What the Court is saying is that it makes the government more likely to lose, which they're assuming is bad for the child, when in reality, it can very easily be good for the child. It's just a situation where a balancing test makes absolutely no sense, and that's why the Stevens dissent is so important here, because he's cutting through a huge amount of bullshit and basically saying, What are we doing here?

0:30:56.4 Rhiannon: Yeah. I think that's a really good point. And just to take a step back and kind of think more broadly about this results-oriented thinking and this results-oriented analysis, the Court has nothing to say about every step along the way in this woman's life and in the life of these children about the systemic failure, systemic failure at every level. This family, Abby Gail Lassiter specifically and individually is failed first by an education system, a welfare system that is supposed to take care of her and her family, the criminal justice system, and now the family and social services system.

0:31:40.6 Rhiannon: And I think some listeners will hear the narrative from up top and hear like, Well, the hospital, the doctors thought this child was malnourished, there's evidence that there was neglect here, right? But the Court has nothing to say about this being the only solution, that her child is taken away from her, this family is separated when there's another family caregiver willing to take on the role of raising this child when, like I said, every support system that is supposed to be there has failed this family, and has filled Abby Lassiter specifically.

0:32:15.2 Peter: Not to mention, she doesn't even have custody. This is about the termination of parental rights, which are distinct from custody itself. This is essentially a hearing about extinguishing any hope that you might ever get custody. That's what it's really about, and I think, Rhi, you're touching on an important point, which is yes, there were findings that the child was malnourished, etcetera, and we're not here doing an episode 'cause we think this woman was a great parent. The only question is whether she gets due process in the course of having her child taken away from her.

0:32:52.5 Peter: And the fact is that as much as the state reflected through the opinion of the Supreme Court here, is acting as though taking this child away from the mother is in what's in the best interest of the child, and sort of representing that they have the best interest of the child at heart. But it will be the same fucking justices if this kid happens to get into some legal trouble, that perhaps is more likely when you're stuck in the foster system. It'll be these same fucking justices and judges all the way down throwing the kid under the bus and saying that he's responsible for his own situation.

0:33:32.2 Rhiannon: Exactly.

0:33:32.6 Jay Willis: We've talked a little bit about the Supreme Court's obvious disinterest in and disdain for Abby Lassiter's position, like this incredible "to be sure" statement. Like, sure, there was some light hearsay, but probably a lawyer wouldn't have made a difference. But one thing that the Blackmun dissent does that the majority does not, is really engage with the facts and the transcript at the trial level, at the custody hearing, and this stuff gets pretty rough, pretty grim fast. So going back to this transcript, and I don't know the race and gender of this judge, but this was, again, North Carolina in the 1970s, so I invite you to just make some assumptions along with me.

0:34:17.7 Rhiannon: Yeah, [chuckle] assumptions that are probably correct. Yeah.

0:34:21.6 Jay Willis: This judge is basically getting mad at Abby Gail for testifying instead of cross-examining the social worker. I'm quoting here, "I don't want you to testify, I want to know whether you want to cross-examine her or ask her any questions."

0:34:36.6 Rhiannon: How is she supposed to know what that means?

0:34:37.9 Jay Willis: Right, not clear. So there's another section, the grandmother. There's a question of fact in this about whether the grandmother had ever at some point made some kind of complaint to Social Services about her daughter's ability to raise the children. It's not clear either way, but when this is at issue in the proceedings below, the grandmother, she says, "I didn't make a complaint." And she's trying to emphasize the point, and she says, "I'll raise my right hand to God and die saying that." The court, the fucking judge says, "I wish you wouldn't talk like that, it scares me to be in the same room with you."

0:35:13.5 Michael: What the...

0:35:14.5 Rhiannon: Ay yi yi.

0:35:15.8 Michael: What the fuck? [chuckle]

0:35:18.4 Jay Willis: Yeah. You want to sit with that for a minute? Yeah.

0:35:21.9 Peter: I'm sorry, but isn't like swearing on the Bible probably a pretty standard part of the court proceeding in the South at this point in time?

0:35:29.7 Rhiannon: Right, and she was just sworn in.

0:35:30.6 Peter: Someone swearing to God is literally part of the procedure in the courtroom.

0:35:34.1 Rhiannon: Right, it's just racist, fake fear.

0:35:39.7 Peter: Well, let's not jump to conclusions, Rhiannon.

[laughter]

0:35:43.9 Jay Willis: There's a point where Abby Gail references, "he," her son, William, "He knows my mother and he knows all of us." She's trying to make the case to keep William with the family. The judge cuts her off and says, "Who is he?" As if anyone in the courtroom doesn't know who we're talking about.

[laughter]

0:36:00.4 Rhiannon: Right.

0:36:02.3 Jay Willis: And then, the last one that gets me is when Abby Gail brings up that her mother had denied filing this complaint, the judge says, "Well, that was some ghost who came up here and filed it, I suppose." And you can almost hear the judge... Again, I won't make assumptions. You can almost hear him getting exasperated and staring at the ceiling. But this is an avoidable problem. Rhiannon, you were getting at this. The distinction between cross-examination and testimony, a judge gets that, a lawyer gets that, but Abby Gail doesn't. They're getting mad at this incarcerated women basically for not being a fancy lawyer, and again, making a really good case that a lawyer might have made a difference.

0:36:44.4 Jay Willis: It's impossible for me to imagine a judge talking like this to a lawyer, and in a courtroom having a lawyer is sort of a proxy for having a meritorious case. You can speak the language, you can participate in the process. A pro-se plaintiff coming in is just an excuse for a judge like this to be an asshole, not to take this seriously. Just check a box and go home.

0:37:07.4 Peter: Yeah, yeah. The judge is like a cross between the cops from Mississippi Burning and the cops from Porkeys...

[laughter]

0:37:16.1 Peter: From what I can tell.

0:37:17.0 Rhiannon: Just making assumptions.

0:37:18.2 Jay Willis: Foghorn Leghorn as judge, I assume.

[laughter]

0:37:22.2 Michael: "I say, I say, I'm scared."

0:37:26.2 Rhiannon: We should note that lots of jurisdictions, lots of states actually do provide attorneys now in this situation, they do provide attorneys in parental rights termination proceedings, because this is so important. Because the state recognizes, after this case, just how important these proceedings are and that there is more efficiency and sort of a dependable formality when attorneys are present for both sides. It actually improves the system and improves the process for both sides when parents are appointed attorneys upfront.

0:38:06.3 Peter: Right. Maybe we could take a step back and talk about broadening the right to an attorney generally, 'cause we're talking about the right to an attorney in a pretty limited setting, a parental rights hearing. But the broader concern is that outside of criminal proceedings, the right to an attorney is essentially not there. And as the Court holds here, you only have that right if you're at risk of being thrown in jail or prison, at least you only have that right inherently, in those situations.

0:38:37.2 Peter: So it's important to take a step back and just think about how little that makes sense. Like we mentioned, if you're threatened with two days in jail, you get an attorney, but if the state is going to take away your child, you do not. If you are threatened with $2 million in civil damages, you're not assured an attorney, despite the fact that an adverse judgment in that situation could devastate you.

0:39:01.0 Rhiannon: Absolutely.

0:39:01.9 Peter: Could completely up-end your life. The system we have is not just like imprecise, it is wholly inadequate and does very little to protect people who need the protection of due process. And I was thinking about this when I was reading the stupid balancing tests that the Court is going through here. Here's a legal test, a legal analysis that is simpler and more effective than the one the Court is implementing here. Is there a single wealthy or well-off person on earth who would not lawyer up for this proceeding? If the answer is no, then maybe there should be a right to an attorney. Could you imagine like an upper middle class mother just showing up at a custody hearing pro se? Of course not, right?

0:39:48.9 Jay Willis: Going to wing it.

0:39:51.0 Peter: Everyone who could afford it would lawyer up, so maybe then the people who can't afford it should be given lawyers too. That seems like a better framework for analyzing these cases than this unbelievably convoluted bullshit the Court has now.

0:40:05.6 Rhiannon: Yes. Peter, that's a really good point, and I think it highlights that in many areas, not just in the termination of parental rights proceedings, but in many areas, people should be appointed lawyers outside of criminal cases. We're talking about tenants' rights, disability rights, all sorts of hosts of legal issues, employment discrimination cases, where people should be given attorneys and there should be what we call sometimes the civil Gideon, Gideon versus Wainwright is the case in the '60s that guaranteed an attorney to be appointed to you if you could not afford one, only in a criminal case.

0:40:47.2 Rhiannon: And so there should also be a civil Gideon, this concept that in civil cases where big rights are on the table, where poor people suffer because they don't have attorneys, the state should be providing lawyers for them.

0:41:00.4 Michael: The only interest the state ever identifies as weighing against having counsel guaranteed here is a pecuniary interest, like that costs money.

0:41:11.3 Rhiannon: Yes.

0:41:12.0 Michael: And then they turn around and concede, it's nothing. It's like it costs them nothing in comparison to what they already spend on guaranteeing attorneys in criminal trials and all that, that's like a de minimis extra expenditure. So there's no reason not to. There's no reason not to have this.

0:41:31.7 Peter: Right. They're like, "Well, it costs a lot of money." And I'm like, "Well, okay, what you're talking about is the cost of having a civil society."

0:41:38.4 Rhiannon: Right.

0:41:39.0 Peter: So If you don't want to pay it, then just say that, right, say you want to go in another direction with society, and then we can operate from that premise. Let's all be honest.

0:41:47.8 Jay Willis: So Stevens make this point in dissent, but a balancing test that equates parental rights to some abstract notion of economic efficiency is really just a way of saying that poor people's rights don't matter to the Court.

0:42:04.1 Rhiannon: Yes.

0:42:04.1 Jay Willis: And I think this goes a long way towards undermining faith in the legal system as something that can ever dispense with anything barely, marginally representing justice is the trickle-down effect of this decisions in other context, the right to counsel in eviction proceedings. The overwhelming majority of poor people who are about to lose their homes don't have lawyers, and as a result, people lose their homes all the time, even if there are improper filings, procedures that tenants without lawyers didn't know to challenge.

0:42:39.9 Jay Willis: And the consequence of this justice gap is about half of people who face eviction don't even bother showing up to their hearing, 'cause it's like, Why bother if you're just going to get railroaded. If your choice is between showing up to this hearing or taking a day off from work like, well, you're not going to pass those hours, you know? There's a point in the majority opinion when they kind of get on this slippery slope argument like, "Well, if we give this lady a lawyer here, when won't we have to give poor people lawyers." And I'm just like the Jack Nicholson nodding. And like, "Yeah. You've almost got it. Just take that to its logical conclusion. I love that."

0:43:19.5 Rhiannon: Right. Right. You're very close. Yeah.

0:43:22.5 Peter: One last thing I want to say before we wrap this episode is, whenever I'm reading a case like this, I sort of think about how it reads in light of the latest conservative moral panic about LGBT content in classrooms and LGBT teachers. This is like a rehash of moral panics of yore, of course, where the argument was that gay people are going to recruit and corrupt your sterling white perfectly straight little children. And at the level of the conservative base, that's basically the same argument that exists today, but at the nominally more serious or careful level of mainstream GOP politicians, it manifests as an argument about parental rights.

0:44:09.3 Peter: Your right to control your child's education, to sort of dictate their future in some way. It's framed as yes, an argument about indoctrination, about indoctrination being a concern because you want to be able to control what your child absorbs, it's a parental rights argument. And I've seen many liberals and leftists make the unfortunate mistake of engaging with these arguments in good faith, defending the curricula in question, for example, and so forth. Do not waste your time and energy. Do you know how we know that they don't actually care about parental rights?

0:44:46.1 Peter: Because whenever it's a poor person's right to parent their child, they will accept any and every inference against the parent, right? Conservatives don't believe in parents' rights, they believe in their own rights, and sometimes they are parents, just like they don't believe in free speech or anything else, except as it applies to them.

0:45:10.6 Rhiannon: Exactly.

0:45:11.6 Peter: Whenever I see cases like this I always think about how sharply it contrasts with one of the major conservative talking points, not just of like our modern political era but of the last 50 years or so, that people should have control over their children to some degree. You even saw this like 10 years before this case, there's a very famous case about compulsory public education and Amish families who did not want to send their kids to public school after a certain age. And the Court said, Yeah, you know, it's your right to control your child's education. All of that shit goes out the window when it's poor people. All of that shit goes out the window when it's people of a different race and economic class.

0:46:00.1 Michael: So we've done an episode called Adoptive Couple v. Baby Girl about the Indian Child Welfare Act, ICWA, where we got into just how broken social services systems were in the '60s and '70s, and how they were just taking kids from the tribes, just like en masse, like shockingly high number of American Indian children just being taken from their families and given to white people, so much so that Congress passed a law like ICWA to protect that. And so I think that's good context not only for this case but to understand that the conservative movement is trying to overturn ICWA. Right now, they are challenging it in the Supreme Court today, that's happening right now, all this talk about parental rights. And they're trying to go after one of the most important pieces of legislation in the last 50 years to protect the parental and the...

0:47:00.8 Peter: The nuclear family.

0:47:03.0 Michael: The nuclear family of tribal nations.

0:47:05.4 Rhiannon: Exactly.

0:47:06.3 Michael: They are totally full of shit.

0:47:08.4 Peter: Just another way in which all of the things that have happened in the past are happening again, even worse and even dumber.

0:47:15.3 Rhiannon: Yup. Time is a circle.

0:47:17.5 Michael: Flat circle.

0:47:18.2 Peter: Time is a big dumb flat circle.

0:47:20.1 Rhiannon: Time is a big old, big... No, no, no. [laughter] I was going to make a butthole joke. [laughter]

0:47:28.3 Michael: Time is a goatse. [laughter] We're all staring right down the inside of time's asshole. [laughter]

0:47:41.8 Peter: Alright. Well, sometimes we say something hopeful at the end, sometimes we don't. Sorry, folks. [laughter]

0:47:46.6 Rhiannon: Jay, thank you so much for being with us.

0:47:51.3 Jay Willis: Yeah, thank you so much for having me. It's always a pleasure to talk with you guys about how cool and good the legal system is.

0:47:57.5 Rhiannon: About the most depressing shit on earth. Yeah.

0:48:01.3 Michael: Yeah, Jay is a huge help. I really didn't feel like doing much work this week and you really came through in the clutch for me, so thank you so much.

0:48:08.9 Jay Willis: I'm here to enable you, that's my role.

0:48:13.1 Rhiannon: Everybody check out Balls and Strikes.

0:48:14.4 Jay Willis: Ballsandstrikes.org. On Twitter, we are Ballstrikes, because my DMs to whoever owns the Balls and Strikes handle not returned yet. Soon, though. Soon, I think. [laughter]

0:48:28.2 Rhiannon: Pulling for you, bro.

0:48:35.9 Peter: Next week we are dropping the recording of our live show from just a couple of weeks ago in Oakland, California. I think I can say for all of us that it was the best experience of our lives. Follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod. Check out ballsandstrikes.org for really the only left-leaning Supreme Court commentary in the game, or at least in the written game. And if you want to contribute to Balls and Strikes, you can just pitch Jay and he'll throw some Soros money at you, and it's all good.

0:49:13.4 Jay Willis: Eat shit, Noah Feldman. [laughter] Thanks for having me, guys. Good to see you.

0:49:17.5 Michael: Bye, everybody.

0:49:19.3 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:49:43.1 Peter: Time is a goatse is a classic line. I almost feel like it's worth keeping in because the people that would be offended by it will have no idea what you just said.

0:49:53.4 Rhiannon: They don't know what it means.

0:49:54.7 Jay Willis: For those of you who don't know what goatse is, do google that.