Even though these indigent citizens make up the vast majority of criminal defendants in this country, they are not included in the Court's equation or, as we see below, anywhere else in this dissent. For example, after evaluating some of the material facts of the case—two defendants, a wife and husband, deprived of their right to ask a judge, before trial, to unfreeze their assets so that they may pay their lawyer—the dissenters then return to their analysis of the Sixth Amendment. Chief Justice Roberts and company wrote:

The issues at stake here implicate fundamental constitutional principles. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” In many ways, this is the most precious right a defendant has, because it is his attorney who will fight for the other rights the defendant enjoys. United States v. Cronic, 466 U. S. 648, 653–654 (1984). And more than 80 years ago, we found it “hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.” Powell v. Alabama, 287 U. S. 45, 53 (1932).

This is precisely the sort of language we would have read from a justice during the height of the Warren Court except for what is plainly missing from the litany of case citations. Nowhere do the dissenters cite Gideon v. Wainwright, one of the most important cases in the history of the Supreme Court, and the one from which indigent defendants gained their own right to counsel 51 years ago. The omission is intentional, of course, and its effect is to emphasize, candidly, again, that this Court believes that there are really two paths to the constitutional right to counsel—one for people who can afford a lawyer and one for those who can't.

One case the dissenters did cite was Powell v. Alabama, the case that preceded Gideon in the lineage of this constitutional right. When the Powell court had cause to describe the essence of competent counsel, when the justices of that era pondered what was expected of every lawyer, they came up with this formula:

In any event, the circumstance lends emphasis to the conclusion that, during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thoroughgoing investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself (emphasis added by me).

Today, that reasonable standard is absent from the Court's jurisprudence. The law today as it has been shaped by the justices does not require lawyers to provide "consultation, thoroughgoing investigation and preparation" in order to satisfy a client's constitutional right to counsel. Instead, we have a dubious standard from one of the most cynical cases in modern Court history, Strickland v. Washington, decided in 1984, which excuses even gross incompetence by attorneys so long as it is conceivable that such incompetence would not have made a difference in the outcome of the case.