The Gender of Gideon

56 Pages Posted: 19 Mar 2021 Last revised: 16 Sep 2021

See all articles by Kathryn A. Sabbeth

Kathryn A. Sabbeth

University of North Carolina at Chapel Hill - School of Law

Jessica Steinberg

George Washington University - Law School

Date Written: March 18, 2021

Abstract

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating racial and gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and, we argue, available data suggest that the largest categories of these cases—family law, eviction, and debt collection—disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, in the absence of government-appointed counsel, women’s individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised by lack of access to representation, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

Keywords: constitutional law, due process, right to counsel, civil procedure, courts, feminist jurisprudence, law & society, eviction, debt, parental termination

Suggested Citation

Sabbeth, Kathryn Anne and Steinberg, Jessica, The Gender of Gideon (March 18, 2021). UCLA Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3807349 or http://dx.doi.org/10.2139/ssrn.3807349

Kathryn Anne Sabbeth

University of North Carolina at Chapel Hill - School of Law ( email )

102 Ridge Road
Chapel Hill, NC 27514
United States

HOME PAGE: http://www.law.unc.edu/faculty/directory/sabbethkathryna/

Jessica Steinberg (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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