Thomas, J., dissenting
The Court began shifting direction in 1932, when it suggested that a right to appointed counsel might exist in at least some capital cases, albeit as a right guaranteed by the Due Process Clause. Powell, supra, at 71. Soon thereafter, the Court held that the Sixth Amendment secures a right to court-appointed counsel in all federal criminal cases. Johnson v. Zerbst, 304 U. S. 458, 462–463 (1938). And in 1963, the Court applied this categorical rule to the States through the Fourteenth Amendment, stating “that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Gideon, supra, at 344. Neither of these opinions attempted to square the expansive rights they recognized with the original meaning of the “right… to have the Assistance of Counsel.” Amdt. 6.
B
After the Court announced a constitutional right to appointed counsel rooted in the Sixth Amendment, it went on to fashion a constitutional new-trial remedy for cases in which counsel performed poorly. The Courts of Appeals had initially adopted a “farce and mockery” standard that they rooted in the Due Process Clause. This standard permitted a defendant to make out an ineffective-assistance claim only “where the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice.” Diggs v.
rules and principles of law that are well established and clearly defined in the elementary books, or which have been declared in adjudged cases that have been duly reported and published a sufficient length of time to have become known to those who exercise reasonable diligence in keeping pace with the literature of the profession.” T. Cooley, Law of Torts *779 (footnotes omitted).
Thus, reasonable choices not clearly foreclosed by law or precedent would apparently permit an attorney to successfully defend against the suit.
