Access to the Courts

• Author: Kenneth L. Karst
• Pages: 23

Page 23

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...