I am sorry if I have seemed to be suffering from Turner-obsession this last ten days. But it really is an important decision, and has taken a lot of my time because I believe it has the potential to transform the debate about access to justice, and particularly the general role of the courts in ensuring access. Here is the key content of the concluding post from the Symposium, drafted by David Udell and myself. Full post here.
The Turner Symposium is over. One week and 18 posts later, we are very proud of the ideas and insights that have been shared here. Thank you to all who posted for a spectacularly worthwhile and open conversation about Turner v. Rogers (the full list of participants is available in the original post).
While the Court found no categorical civil right to counsel it usefully clarified the obligations of trial court judges and courts toward unrepresented litigants, particularly those facing the risk of incarceration. Our panelists identified a range of possible positive jurisprudential and access-to-court impacts for Turner over time:
- If trial courts deliver on their new obligation to assure “fundamental fairness” through “procedural safeguards” (and not just in incarceration cases) we will look back at Turner as having opened up the courts, and as having shifted from the state to the courts the responsibility to provide access. If so, the case will indeed be a transformative landmark.
- If Access to Justice Commissions are empowered by Turner and state leadership to expand their role in reviewing and changing the accessibility of the system as a whole, then the case will be seen as an institutional game changer.
- If the case prompts national leadership within the courts and within the bar to develop national strategies for forms, judicial education and Justice Index type benchmarking, this too will have long term transformative impacts.
- If the Supreme Court later finds categorical rights to counsel for litigants in cases with governmental opponents, lawyers on the other side, or complications beyond civil contempt, Turner may be seen as laying the crucial foundation for those rights.
- If categorical rights to counsel resonate with more state courts and legislatures, Turner’s denial of an “automatic” federal right may be seen as largely beside the point.
- If we identify “safeguards” that work, and how best to use them, Turner may be seen as having prompted the research and analysis that assured “fundamental fairness.”
- If we figure out which litigants and cases need counsel, and which can be heard with alternatives, Turner may be seen as having made that progress possible too.
- If we loosen unauthorized practice laws, Turner’s reliance on “complexity” may be seen as having made the absoluteness of those laws impossible to justify whenever counsel is denied.
Of course, our panelists have seen darker scenarios too: the risks that “safeguards” in fact won’t mean much, and that civil right to counsel claims will find new barriers in Turner. These are the dangers.
We can’t control today what the Court did last week, but the Turner Symposium prompted deeper thinking in a shorter period of time on a broader range of issues than many of us could have imagined.
As to what will actually come to pass? Time will tell, but at least some of that will be up to all of us.