SUPREME COURT OF THE UNITED STATES

No. 95–853

M. L. B., PETITIONER v. S. L. J., individually and as next friend of the minor children,

S. L. J. and M. L. J., et ux.

on writ of certiorari to the supreme court of mississippi

[December 16, 1996]

Justice Thomas, with whom Justice Scalia joins, and with whom The Chief Justice joins except as to Part II, dissenting.

Today the majority holds that the Fourteenth Amendment requires Mississippi to afford petitioner a free transcript because her civil case involves a "fundamental" right. The majority seeks to limit the reach of its holding to the type of case we confront here, one involving the termination of parental rights. I do not think, however, that the new-found constitutional right to free transcripts in civil appeals can be effectively restricted to this case. The inevitable consequence will be greater demands on the States to provide free assistance to would-be appellants in all manner of civil cases involving interests that cannot, based on the test established by the majority, be distinguished from the admittedly important interest at issue here. The cases on which the majority relies, primarily cases requiring appellate assistance for indigent criminal defendants, were questionable when decided, and have, in my view, been undermined since. Even accepting those cases, however, I am of the view that the majority takes them too far. I therefore dissent.

Petitioner requests relief under both the Due Process and Equal Protection Clauses, though she does not specify how either clause affords it. The majority accedes to petitioner's request. But, carrying forward the ambiguity in the cases on which it relies, the majority does not specify the source of the relief it grants. Those decisions are said to "reflect both equal protection and due process concerns." Ante, at 16. And, while we are told that "cases of this order `cannot be resolved by resort to easy slogans or pigeonhole analysis,'" ibid. (quoting Bearden v. Georgia, 461 U. S. 660, 666 (1983)), the majority nonetheless acknowledges that "`[m]ost decisions in this area . . . res[t] on an equal protection framework.'" Ante, at 16 (quoting Bearden, supra, at 665). It then purports to "place this case within the framework established by our past decisions in this area." Ante, at 16. It is not clear to me whether the majority disavows any due process support for its holding. (Despite the murky disclaimer, the majority discusses numerous cases which squarely relied on due process considerations.) I therefore analyze petitioner's claim under both the Due Process and Equal Protection Clauses. If neither Clause affords petitioner the right to a free, civil-appeal transcript, I assume that no amalgam of the two does.

We have indicated on several occasions in this century that the interest of parents in maintaining their relationships with their children is "an important interest that `undeniably warrants deference and, absent a powerful countervailing interest, protection.'" Lassiter v. Department of Social Servs. of Durham Cty., 452 U. S. 18, 27 (1981) (quoting Stanley v. Illinois, 405 U. S. 645, 651 (1972)). Assuming that petitioner's interest may not be impinged without due process of law, I do not think that the Due Process Clause requires the result the majority reaches.

Petitioner's largest obstacle to a due process appeal gratis is our oft-affirmed view that due process does not oblige States to provide for any appeal, even from a criminal conviction. See, e.g., Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion) (noting that "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all") (citation omitted); McKane v. Durston, 153 U. S. 684, 687 (1894) ("A review by an appellate court of the final judgment in a criminal case, however grave the offence of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the State to allow or not to allow such a review. A citation of authorities upon the point is unnecessary"). To be sure, we have indicated, beginning with Griffin v. Illinois, that where an appeal is provided, States may be prohibited from erecting barriers to those unable to pay. As I described last Term in my concurring opinion in Lewis v. Casey, 518 U. S. ___ (1996) (slip op., at 6–10), however, I believe that these cases are best understood as grounded in equal protection analysis, and thus make no inroads on our longstanding rule that States that accord due process in a hearing-level tribunal need not provide further review.

The majority reaffirms that due process does not require an appeal. Ante, at 5, 16. Indeed, as I noted above, it is not clear that the majority relies on the Due Process Clause at all. The majority does discuss, however, one case in which the Court stated its holding in terms of due process: Boddie v. Connecticut, 401 U. S. 371 (1971). In Boddie, the Court held violative of due process a Connecticut statute that exacted fees averaging $60 from persons seeking marital dissolution. Citing the importance of the interest in ending a marriage, and the State's monopoly over the mechanisms to accomplish it, we explained that, "at a minimum" and "absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Id., at 377. Boddie has little to do with this case. It, "of course, was not concerned with post-hearing review." Ortwein v. Schwab, 410 U. S. 656, 659 (1973). Rather, the concern in Boddie was that indigent persons were deprived of "fundamental rights" with no hearing whatsoever. Petitioner, in contrast, received not merely a hearing, but in fact enjoyed procedural protections above and beyond what our parental termination cases have required. She received both notice and a hearing before a neutral, legally trained decisionmaker. She was represented by counsel—even though due process does not in every case require the appointment of counsel. See Lassiter, supra, at 24. Through her attorney, petitioner was able to confront the evidence and witnesses against her. And, in accordance with Santosky v. Kramer, 455 U. S. 745, 769 (1982), the Chancery Court was required to find that petitioner's parental unfitness was proved by clear and convincing evidence. Indeed, petitioner points to no hearing-level process to which she was entitled that she did not receive.

Given the many procedural protections afforded petitioner, I have little difficulty concluding that "due process has . . . been accorded in the tribunal of first instance." Ohio ex rel. Bryant v. Akron Metropolitan Park Dist., 281 U. S. 74, 80 (1930). Due process has never compelled an appeal where, as here, its rigors are satisfied by an adequate hearing. Those cases in which the Court has required States to alleviate financial obstacles to process beyond a hearing—though sometimes couched in due process terms—have been based on the equal protection proposition that if the State chooses to provide for appellate review, it "`can no more discriminate on account of poverty than on account of religion, race, or color.'" Lewis v. Casey, supra, at ___ (slip op., at 8) (Thomas, J., concurring) (quoting Griffin v. Illinois, supra, at 17 (plurality opinion)) (footnote omitted). There seems, then, no place in the Due Process Clause—certainly as an original matter, and even as construed by this Court—for the constitutional "right" crafted by the majority today. I turn now to the other possible source: The Equal Protection Clause.

As I stated last Term in Lewis v. Casey, I do not think that the equal protection theory underlying the Griffin line of cases remains viable. See 518 U. S., at ___ (slip op., at 11–16). There, I expressed serious reservations as to the continuing vitality of Bounds v. Smith, 430 U. S. 817 (1977) (requiring prison authorities to provide prisoners with adequate law libraries or legal assistance). As it did in Bounds, the Court today not only adopts the equal protection theory of Griffin v. Illinois—which was dubious ab initio and which has been undermined since—but extends it. Thus, much of what I said in Lewis v. Casey bears repeating here.

In Griffin, the State of Illinois required all criminal appellants whose claims on appeal required review of a trial transcript to obtain it themselves. The plurality thought that this "discriminate[d] against some convicted defendants on account of their poverty," Griffin v. Illinois, 351 U. S., at 18 (plurality opinion). Justice Harlan, in dissent, perceived a troubling shift in this Court's equal protection jurisprudence. The Court, he noted, did not "dispute either the necessity for a bill of exceptions or the reasonableness of the general requirement that the trial transcript, if used in its preparation, be paid for by the appealing party." Id., at 35. But, because requiring each would-be appellant to bear the costs of appeal hit the poor harder, the majority divined "an invidious classification between the `rich' and the `poor.'" Ibid. Disputing this early manifestation of the "disparate impact" theory of equal protection, Justice Harlan argued:

"[N]o economic burden attendant upon the exercise of a privilege bears equally upon all, and in other circumstances the resulting differentiation is not treated as an invidious classification by the State, even though discrimination against `indigents' by name would be unconstitutional." Ibid.

Justice Harlan offered the example of a state university that conditions an education on the payment of tuition. If charging tuition did not create a discriminatory classification, then, Justice Harlan wondered, how did any other reasonable exaction by a State for a service it provides? "The resulting classification would be invidious in all cases, and an invidious classification offends equal protection regardless of the seriousness of the consequences." Ibid. (emphasis deleted). The issue in Griffin was not whether Illinois had made a reasonable classification, but whether the State acted reasonably in failing to remove disabilities that existed wholly independently of state action. To Justice Harlan this was not an inquiry typically posed under the Equal Protection Clause.

In Douglas v. California, 372 U. S. 353 (1963), Justice Harlan again confronted what Justice Clark termed the Court's "fetish for indigency," id., at 359 (dissenting opinion). Regarding a law limiting the appointment of appellate counsel for indigents, Justice Harlan pointed out that "[l]aws such as these do not deny equal protection to the less fortunate for one essential reason: the Equal Protection Clause does not impose on the States `an affirmative duty to lift the handicaps flowing from differences in economic circumstances.'" Id., at 362 (dissenting opinion) (footnote omitted).

Justice Harlan's views were accepted by the Court in Washington v. Davis, 426 U. S. 229 (1976), in which "[w]e rejected a disparate impact theory of the Equal Protection Clause altogether." Lewis v. Casey, supra, at ___ (slip op., at 13) (concurring opinion). We spurned the claim that "a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another." 426 U. S., at 242. Absent proof of discriminatory purpose, official action did not violate the Fourteenth Amendment "solely because it has a racially disparate impact." Id., at 239 (emphasis in original). Hearkening back to Justice Harlan's dissents in Griffin and Douglas, we recognized that

"[a] rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white." 426 U. S., at 248 (footnote omitted).

The lesson of Davis is that the Equal Protection Clause shields only against purposeful discrimination: A disparate impact, even upon members of a racial minority, the classification of which we have been most suspect, does not violate equal protection. The Clause is not a panacea for perceived social or economic inequity; it seeks to "guarante[e] equal laws, not equal results." Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 273 (1979).

Since Davis, we have regularly required more of an equal protection claimant than a showing that state action has a harsher effect on him or her than on others. See, e.g., Harris v. McRae, 448 U. S. 297, 324, n. 26 (1980) ("The equal protection component of the Fifth Amendment prohibits only purposeful discrimination, and when a facially neutral federal statute is challenged on equal protection grounds, it is incumbent upon the challenger to prove that Congress selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.") (internal quotations and citations omitted); see also Lewis v. Casey, 518 U. S., at ___ (slip op., at 12–13) (concurring opinion) (citing cases). Our frequent pronouncements that the Fourteenth Amendment is not violated by disparate impact have spanned challenges to statutes alleged to affect disproportionately members of one race, Washington v. Davis, supra; members of one sex, Personnel Administrator v. Feeney, supra; and poor persons seeking to exercise protected rights, Harris v. McRae, supra; Maher v. Roe, 432 U. S. 464, 470–471 (1977).

The majority attempts to avoid what I regard as the irresistible force of the Davis line of cases, but I am unconvinced by the effort. The majority states that persons in cases like those cited above "sought state aid to subsidize their privately initiated action or to alleviate the consequences of differences in economic circumstances that existed apart from state action." Ante, at 21. Petitioner, in apparent contrast, "is endeavoring to defend against the State's destruction of her family bonds, and to resist the brand associated with a parental unfitness adjudication." Ante, at 21–22. She, "[l]ike a defendant resisting criminal conviction . . . seeks to be spared from the State's devastatingly adverse action." Ante, at 21–22. But, also like a defendant resisting criminal conviction, petitioner is not constitutionally entitled to post-trial process. See ante, at 5, 16. She defended against the "destruction of her family bonds" in the Chancery Court hearing at which she was accorded all the process this Court has required of the States in parental termination cases. She now desires "state aid to subsidize [her] privately initiated" appeal—an appeal that neither petitioner nor the majority claims Mississippi is required to provide—to overturn the determination that resulted from that hearing. I see no principled difference between a facially neutral rule that serves in some cases to prevent persons from availing themselves of state employment, or a state-funded education, or a state-funded abortion—each of which the State may, but is not required to, provide—and a facially neutral rule that prevents a person from taking an appeal that is available only because the State chooses to provide it.

Nor does Williams v. Illinois, 399 U. S. 235 (1970), a case decided six years earlier, operate to limit Washington v. Davis. Williams was yet another manifestation of the "equalizing" notion of equal protection that this Court began to question in Davis. See Williams, supra, at 260 (Harlan, J., concurring in result). To the extent its reasoning survives Davis, I think that Williams is distinguishable. Petitioner Williams was incarcerated beyond the maximum statutory sentence because he was unable to pay the fine imposed as part of his sentence. We found the law that permitted prisoners to avoid extrastatutory imprisonment only by paying their fines to violate the Equal Protection Clause. Even though it was "`nondiscriminatory on its face,'" the law "work[ed] an invidious discrimination" as to Williams and all other indigents because they could not afford to pay their fines. 399 U. S., at 242. The majority concludes that the sanctions involved in Williams are analogous to "the Mississippi prescription here at issue," in that both do not have merely a disparate impact, "they apply to all indigents and do not reach anyone outside that class." Ante, at 23. Even assuming that Williams' imprisonment gave rise to an equal protection violation, however, M. L. B.'s circumstances are not comparable. M. L. B.'s parental rights were terminated—the analog to Williams' extended imprisonment—because the Chancery Court found, after a hearing, that she was unfit to remain her children's mother, not because she was indigent. Her indigency only prevented her from taking advantage of procedures above and beyond those required by the Constitution—in the same way that indigency frequently prevents persons from availing themselves of a variety of state services.

The Griffin line of cases ascribed to—one might say announced—an equalizing notion of the Equal Protection Clause that would, I think, have startled the Fourteenth Amendment's Framers. In those cases, the Court did not find, nor did it seek, any purposeful discrimination on the part of the state defendants. That their statutes had disproportionate effect on poor persons was sufficient for us to find a constitutional violation. In Davis, among other cases, we began to recognize the potential mischief of a disparate impact theory writ large, and endeavored to contain it. In this case, I would continue that enterprise. Mississippi's requirement of prepaid transcripts in civil appeals seeking to contest the sufficiency of the evidence adduced at trial is facially neutral; it creates no classification. The transcript rule reasonably obliges would-be appellants to bear the costs of availing themselves of a service that the State chooses, but is not constitutionally required, to provide. Any adverse impact that the transcript requirement has on any person seeking to appeal arises not out of the State's action, but out of factors entirely unrelated to it.

If this case squarely presented the question, I would be inclined to vote to overrule Griffin and its progeny. Even were I convinced that the cases on which the majority today relies ought to be retained, I could not agree with the majority's extension of them.

The interest at stake in this case differs in several important respects from that at issue in cases such as Griffin. Petitioner's interest in maintaining a relationship with her children is the subject of a civil, not criminal, action. While certain civil suits may tend at the margin toward criminal cases, and criminal cases may likewise drift toward civil suits, the basic distinction between the two finds root in the Constitution and has largely retained its vitality in our jurisprudence. In dissent in Boddie v. Connecticut, Justice Black stated that "in Griffin the Court studiously and carefully refrained from saying one word or one sentence suggesting that the rule there announced to control rights of criminal defendants would control in the quite different field of civil cases." 401 U. S., at 390. The Constitution provides for a series of protections of the unadorned liberty interest at stake in criminal proceedings. These express protections include the Fifth Amendment's guarantee of grand jury indictment, and protection against double jeopardy and self-incrimination; the Sixth Amendment's guarantees of a speedy and public jury trial, of the ability to confront witnesses, and of compulsory process and assistance of counsel; and the Eighth Amendment's protections against excessive bail and fines, and against cruel and unusual punishment. This Court has given content to these textual protections, and has identified others contained in the Due Process Clause. These protections are not available to the typical civil litigant. Even where the interest in a civil suit has been labeled "fundamental," as with the interest in parental termination suits, the protections extended pale by comparison. A party whose parental rights are subject to termination is entitled to appointed counsel, but only in certain circumstances. See Lassiter, 452 U. S., at 31–32. His or her rights cannot be terminated unless the evidence meets a standard higher than the preponderance standard applied in the typical civil suit, but the standard is still lower than that required before a guilty verdict. See Santosky v. Kramer, 455 U. S., at 769–770.

That said, it is true enough that civil and criminal cases do not always stand in bold relief to one another. Mayer v. Chicago, 404 U. S. 189 (1971), marks a particularly discomfiting point along the border between the civil and criminal areas. Based on Griffin, the Court determined there that an indigent defendant had a constitutional right to a free transcript in aid of appealing his conviction for violating city ordinances, which resulted in a $500 fine and no imprisonment. In Scott v. Illinois, 440 U. S. 367 (1979), we concluded that an indigent defendant charged with a crime that was not punishable by imprisonment was not entitled to appointed counsel. And yet, in Lassiter, supra, we held that, in some cases, due process required provision of assistance of counsel before the termination of parental rights. The assertion that civil litigants have no right to the free transcripts that all criminal defendants enjoy is difficult to sustain in the face of our holding that some civil litigants are entitled to the assistance of counsel to which some criminal defendants are not. It is at this unsettled (and unsettling) place that the majority lays the foundation of its holding. See ante, at 16–21. The majority's solution to the "anamol[y]" that a misdemeanant receives a free transcript but no trial counsel, while a parental-rights terminee receives (sometimes) trial counsel, but no transcript, works an extension of Mayer. I would answer the conundrum differently: Even if the Griffin line were sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled.

Unlike in Scott and Lassiter, the Court gave short shrift in Mayer to the distinction, as old as our Constitution, between crimes punishable by imprisonment and crimes punishable merely by fines. See Lassiter, supra, at 26–27; Scott, supra, at 373. Even though specific text-based constitutional protections have been withheld in cases not involving the prospect of imprisonment, the Court found the difference of no moment in Mayer. The Court reasoned that "[t]he invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed." 404 U. S., at 197. We reap today what we sowed then. If requiring payment for procedures (e.g., appeals) that are not themselves required is invidious discrimination no matter what sentence results, it is difficult to imagine why it is not invidious discrimination no matter what results and no matter whether the procedures involve a criminal or civil case. See supra, at 7. To me this points up the difficulty underlying the entire Griffin line. Taking the Griffin line as a given, however, and in the absence of any obvious limiting principle, I would restrict it to the criminal appeals to which its authors, see Boddie v. Connecticut, 401 U. S., at 389 (Black, J., dissenting), sought to limit it.

The distinction between criminal and civil cases—if blurred at the margins—has persisted throughout the law. The distinction that the majority seeks to draw between the case we confront today and the other civil cases that we will surely face tomorrow is far more ephemeral. If all that is required to trigger the right to a free appellate transcript is that the interest at stake appear to us to be as fundamental as the interest of a convicted misdemeanant, several kinds of civil suits involving interests that seem fundamental enough leap to mind. Will the Court, for example, now extend the right to a free transcript to an indigent seeking to appeal the outcome of a paternity suit? To those who wish to appeal custody determinations? How about persons against whom divorce decrees are entered? Civil suits that arise out of challenges to zoning ordinances with an impact on families? Why not foreclosure actions—or at least foreclosure actions seeking to oust persons from their homes of many years?

The majority seeks to provide assurances that its holding will not extend beyond parental termination suits. The holdings of Santosky and Lassiter—both of which involved parental termination—have not, we are told, been applied to other areas of law. Ante, at 24. This is not comforting. Both Santosky and Lassiter are cases that determined the requirements of due process (not equal protection) in the parental-rights-termination area. As the Court has said countless times, the requirements of due process vary considerably with the interest involved and the action to which it is subject. It is little wonder, then, that the specific due process requirements for one sort of action are not readily transferable to others. I have my doubts that today's opinion will be so confined. In the first place, it is not clear whether it is an equal protection or a due process opinion. Moreover, the principle on which it appears to rest hardly seems capable of stemming the tide. Petitioner is permitted a free appellate transcript because the interest that underlies her civil claim compares favorably to the interest of the misdemeanant facing a $500 fine and unknown professional difficulties in Mayer v. Illinois. Under the rule announced today, I do not see how a civil litigant could constitutionally be denied a free transcript in any case that involves an interest that is arguably as important as the interest in Mayer (which would appear to include all the types of cases that I mention above, and perhaps many others). What is more, it must be remembered that Griffin did not merely invent the free transcript right for criminal appellants; it was also the launching pad for the discovery of a host of other rights. See, e.g., Bounds, 430 U. S., at 822 (right to prison law libraries or legal assistance); Douglas, 372 U. S., at 356 (right to free appellate counsel). I fear that the growth of Griffin in the criminal area may be mirrored in the civil area.

In brushing aside the distinction between criminal and civil cases—the distinction that has constrained Griffin for 40 years—the Court has eliminated the last meaningful limit on the free-floating right to appellate assistance. From Mayer, an unfortunate outlier in the Griffin line, has sprung the M. L. B. line, and I have no confidence that the majority's assurances that the line starts and ends with this case will hold true.

As the majority points out, many States already provide for in forma pauperis civil appeals, with some making special allowances for parental termination cases. I do not dispute the wisdom or charity of these heretofore voluntary allocations of the various States' scarce resources. I agree that, for many—if not most—parents, the termination of their right to raise their children would be an exaction more dear than any other. It seems perfectly reasonable for States to choose to provide extraconstitutional procedures to ensure that any such termination is undertaken with care. I do not agree, however, that a State that has taken the step, not required by the Constitution, of permitting appeals from termination decisions somehow violates the Constitution when it charges reasonable fees of all would-be appellants. I respectfully dissent.