Access to the Courts

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Writing for the Supreme Court in bounds v. smith (1977), Justice thurgood marshall spoke confidently of "the fundamental constitutional right of access to the courts." In one sense, such a right has been a traditional and noncontroversial part of our constitutional law; barring unusual circumstances, anyone can bring a lawsuit, or be heard in his or her own defense. Justice Marshall, however, was referring to another kind of access. "Meaningful" access to the courts, Bounds held, gave state prisoners a right to legal assistance; the state must provide them either with law libraries or with law-trained persons to help them prepare petitions for habeas corpus or other legal papers. The modern constitutional law of access to the courts, in other words, is focused on the affirmative obligations of government to provide services to people who cannot afford to pay their costs. In this perspective, Justice Marshall's sweeping characterization goes far beyond the results of the decided cases.

The development began in the warren court era, with griffin v. illinois (1957) (state must provide free transcripts to convicted indigents when transcripts are required for effective appeal of their convictions) and douglas v. california (1963) (state must provide appellate counsel for convicted indigents). gideon v. wain-wright (1963) interpreted the right to counsel to require state-appointed trial counsel in felony cases. The Griffin plurality had rested on both due process and equal protection grounds, but by the time of Douglas equal protection had become the Court's preferred doctrine: the state, by refusing to pay for appellate counsel for some indigent defendants, had drawn "an unconstitutional line … between rich and poor." By the close of the Warren years, the Court seemed well on the way to a broad equal protection principle demanding strict judicial scrutiny of wealth discriminations in the criminal justice system, including simple cases of inability to pay the costs of services needed for effective defense.

The Court remained sharply divided, however; the dissenters in Griffin and Douglas argued in forceful language that nothing in the Constitution required the states to take affirmative steps to relieve people from the effects of poverty. They saw no principled stopping-place for the majority's equality principle, and they objected to judicial intrusion into state budgetary processes. Even so, the same Justices found no difficulty in joining the 8–1 decision in boddie v. connecticut (1971), holding that a state could not constitutionally bar an indigent plaintiff from its divorce court for failure to pay a $60 filing fee. The Boddie majority, however, rested on a due process ground. The marriage relationship was "basic," and the state had monopolized the means for its dissolution; thus fundamental procedural fairness demanded access to the divorce court irrespective of ability to pay the fee.

From Boddie forward, the Court has dealt with constitutional claims of access to justice by emphasizing due process considerations of minimal fairness, and deemphasizing the equal protection notion that animated the Warren Court's decisions. At the same time, the Court has virtually ended the expansion of access rights. Thus ross v. moffit (1974) pounced on language in Douglas about the "first appeal as of right," and refused to require state-appointed counsel to pursue discretionary appeals or Supreme Court review. And in United States v. Kras (1971) and Ortwein v. Schwab (1971) the Court, emphasizing the "monopoly" aspects of Boddie, upheld the application of filing fees to deny indigents access to a bankruptcy court and to judicial review of the denial of welfare benefits. A similarly artificial line was drawn in the burger court's decisions on the right to counsel. The Gideon principle was extended, in argersinger v. hamlin (1972), to all prosecutions resulting in imprisonment. Yet in lassiter v. department of social services (1981) a 5–4 Court refused to hold that due process required a state to provide counsel for an indigent mother in a proceeding to terminate her parental rights, absent a showing of complexity or other special circumstances. Behind all these flimsy distinctions surely lay the same considerations urged from the beginning by the Griffin and Douglas dissenters: keep the "floodgates" closed; keep judges' hands off the allocation of public funds.

An access principle of minimal fairness is better than nothing. Yet in a great many contexts the essence of the access claim is an interest in equality itself. To have one's effective say is to be treated as a respected, participating member of the society. An effective hearing in court is more than a chance to influence a judge's decision; it is a vivid symbol of equal citizenship.

Kenneth L. Karst


Goodpaster, Gary 1970 The Integration of Equal Protection, Due Process Standards, and the Indigent's Right of Free Access to the Courts. Iowa Law Review 56:223–266.

Michelman, Frank I. 1973, 1974 The Supreme Court and Litigation Access Fees. Part 1, Duke Law Journal 1973:1153–1215; Part 2, Duke Law Journal 1974:527–570.