The Structural Function of the Sixth Amendment Right to Counsel of Choice

The Sixth Amendment guarantees “the accused,” “[i]n all criminal prosecutions,” “the Assistance of Counsel for his defence.” The right to court-appointed, publicly funded counsel this language calls to mind today is a recent invention. The “root meaning” of the Sixth Amendment’s Counsel Clause, the Supreme Court has stressed—the one with ties to the founding tradition—is the right to retain counsel of one’s choice. Yet until just last Term, no criminal defendant had ever persuaded the Court to reverse a conviction solely on counsel-of-choice grounds; many had tried in vain. I consider in this article whether there is any satisfying, functional account that can explain the disjuncture between what the Court says about the right to counsel of choice and what it does when presented with an asserted violation of that right.