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The Sixth Amendment of the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” This fundamental Right to Counsel is essential to the functioning of an adversarial criminal justice system, ensuring that defendants have the means to assert their other rights and are not otherwise disadvantaged by their lack of finances. In its landmark 1963 decision, Gideon v. Wainwright, which fully applied the Sixth Amendment Right to Counsel to the states, the United States Supreme Court attempted to level the criminal playing field once and for all by ensuring indigent defendants charged with a crime have an attorney to render effective assistance of counsel. Yet more than fifty years later, the parity promised in Gideon has never been fully achieved. Persistent and numerous threats to the functioning of indigent defense systems, chiefly the politically‐derived issues of underfunding and excessive caseloads, have made indigent criminal defense a field under siege, in which most defenders work under conditions that make it impossible to satisfy the Sixth Amendment. This Article considers the current state and trajectory of the Right to Counsel under the assumption that effective, permanent efforts to achieve nationwide implementation will not realistically occur anytime soon. The Article focuses on proposing short‐term, ground‐level, smaller‐scale procedural optimizations that state public defense systems can make on their own to provide better service within the constraints of today’s hostile political environment. It explores the development of the Right to Counsel, analyzing significant past and potential reform efforts and why, for all the progress that has been made, full implementation of the Right still remains distant. The Article suggests several potential ways public defenders, state courts, bar associations, and other parties can improve defendants’ access to justice even without additional funding, a breakthrough ruling, or any legislative or executive action.

This writing is the Keynote Speech delivered at the Stetson Law Review’s April 2018 symposium on the Author’s book, Animus: A Brief Introduction to Bias in the Law (2017). The speech makes the case for celebrating the Supreme Court’s embrace of the equal protection “animus” doctrine. It argues that the doctrine provides courts with a vehicle by which they can respond directly and candidly to some of the maladies currently afflicting American society and politics. It argues that it can play this role in a way that more closely connects modern equal protection law to its historical aspirations. At the same time, it cautions that animus should not become an all‐purpose argument for equal protection plaintiffs. Nevertheless, when confined to its proper sphere, animus doctrine can constitute a positive contribution to the evolution of American equality law. The speech argues for continued scholarly engagement with the animus idea, to help create a doctrine that can both realize this potential but also remain limited to its appropriate sphere.

In a series of cases addressing sexual orientation and other issues, the Supreme Court has ruled that laws grounded in animus are categorically unconstitutional and should be invalidated on that basis—regardless of whether they might be subject to invalidation on other grounds as well. Responding especially to Professor William D. Araiza’s elaboration of the Court’s animus doctrine, this Essay contends that the doctrine is sound as a matter of constitutional principle but highly problematic as a matter of judicial prudence. As the Author explains, there are difficult questions surrounding the precise meaning of animus, the issue of mixed motives, and the relationship between animus and traditional religious beliefs. Moreover, judicial declarations of animus exacerbate the political‐cultural divisions that infect contemporary American politics, damaging the democratic system that the Constitution is designed to protect. Accordingly, the Author concludes that animus should be a doctrine of last resort, to be invoked only when there is no viable and preferable doctrinal alternative.

Animus doctrine has arrived. Once rarely mentioned as an explanation for why rational basis claims succeed under the Equal Protection Clause, today leading scholars have situated animus doctrine as key to rational basis litigants’ success. This characterization has quickly taken on the character of constitutional “common sense,” becoming a widely shared view of how rational basis plaintiffs win. Thus, a showing of animus has been situated as the primary, or perhaps exclusive, way that those outside of the heightened tiers can win claims.

This Article argues that this animus‐focused understanding of rational basis review is both descriptively inaccurate and substantively problematic. For decades, social movements have made use of rational basis review to generate space for constitutional change where the doctrines of heightened scrutiny are unavailable to them. Very few of these cases have involved the application of so‐called “animus” doctrine—and many arguably would not have been successful were a showing of animus required. Nor is such a showing compelled by the Supreme Court’s rational basis precedents, which remain messy, indeterminate, and inconsistent.

Thus, the scholarly animus project—if taken seriously as doctrine—poses real and unnecessary risks to the ways that social movements have relied on rational basis review to effectuate constitutional change. The Article concludes by discussing the Supreme Court’s decision in Trump v. Hawaii, and describing why it should be seen as a warning sign of what an animus‐centric Equal Protection jurisprudence could become.

Within the past two years, two circuit courts overruled decades of precedent that did not include sexual orientation discrimination as Title VII sex discrimination. The courts are starting to address the fact that people can theoretically marry whoever they want on Saturday but have no assurance that they will not be fired from their job on Monday because the employer does not like the fact that the employee married someone of the same sex. In 2015, the Equal Employment Opportunity Commission (EEOC) determined that sexual orientation discrimination is Title VII sex discrimination in Baldwin v. Foxx. In 2017, the Seventh Circuit, sitting en banc, recognized sexual orientation discrimination as sex discrimination under Title VII in Hively v. Ivy Tech Community College. Then in 2018, the Second Circuit, sitting en banc, followed Chief Judge Katzmann’s concurrence in Christiansen v. Omnicom Group, Inc. to recognize sexual orientation discrimination as Title VII sex discrimination in Zarda v. Altitude Express. This Article examines the three cases, Baldwin, Hively, and Christiansen, and the theories recognized by the courts. Prior to recognizing sexual orientation discrimination as a Title VII discrimination, many courts allowed the failure to conform to gender norms theory and associational theory for employment discrimination where sexual orientation often factored into the discrimination. This Article proposes that courts recognize sexual orientation discrimination as sex discrimination under Title VII through deference to the EEOC. However, if unable to convince a court to recognize sexual orientation discrimination as a legal theory for relief, this Article suggest that both the associational theory and failure to conform to gender norms theory based on sexual orientation are avenues for protecting LGBT plaintiffs in employment discrimination cases.

This brief essay responds to written works submitted as part of Stetson Law Review’s April 2018 symposium on the Author’s book, Animus: A Brief Introduction to Bias in the Law (2017). It considers critiques of the Supreme Court’s emerging equal protection “animus” doctrine, and one work that deals more generally with statutory equality rights. This essay finds much to admire in all of these works, including those that critique the animus concept. Nevertheless, this response concludes that animus, as a properly explained but also properly limited doctrine, can play a positive role in equal protection law. In particular, it argues that animus doctrine can provide the vehicle for a candid and direct response to many of the pathologies afflicting contemporary American politics and society. This Response also argues that it can play that role in a way that more tightly connects modern equal protection law to its historical aspirations. For these reasons, it is appropriate both to celebrate animus doctrine but also for scholars to continue studying it, to ensure that it remains confined to its proper sphere.