Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection
Generally.

Whatever may be the status of wealth distinc-tions per se as a suspect classification,2132 there is no doubt that when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity— the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples—then the classifying body bears a substantial burden in justifying what it has done. The cases begin with Griffin v. Illinois,2133 surely one of the most seminal cases in modern constitutional law. There, the state conditioned full direct appellate review—review to which all convicted defendants were entitled—on the furnishing of a bill of exceptions or report of the trial proceedings, in the preparation of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished free transcripts; all other convicted defendants had to pay a fee to obtain them. “In criminal trials,” Justice Black wrote in the plurality opinion, “a State can no more discriminate on account of poverty than on account of religion, race, or color.” Although the state was not obligated to provide an appeal at all, when it does so it may not structure its system “in a way that discriminates against some convicted defendants on account of their poverty.” The system’s fault was that it treated defendants with money differently from defendants without money. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.”2134

The principle of Griffin was extended in Douglas v. California,

2135 in which the court held to be a denial of due process and equal protection a system whereby in the first appeal as of right from a conviction counsel was appointed to represent indigents only if the appellate court first examined the record and determined that counsel would be of advantage to the appellant. “There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshaling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.”2136

From the beginning, Justice Harlan opposed reliance on the Equal Protection Clause at all, arguing that a due process analysis was the proper criterion to follow. “It is said that a State cannot discriminate between the ‘rich’ and the ‘poor’ in its system of criminal appeals. That statement of course commands support, but it hardly sheds light on the true character of the problem confronting us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.” A fee system neutral on its face was not a classification forbidden by the Equal Protection Clause. “[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.”2137 As he protested in Douglas: “The States, of course, are prohibited by the Equal Protection Clause from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws. But it is a far different thing to suggest that this provision prevents the State from adopting a law of general applicability that may affect the poor more harshly than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.”2138

Due process furnished the standard, Justice Harlan felt, for determining whether fundamental fairness had been denied. Where an appeal was barred altogether by the imposition of a fee, the line might have been crossed to unfairness, but on the whole he did not see that a system that merely recognized differences between and among economic classes, which as in Douglas made an effort to ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system that denied due process.2139

The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents’ exercise of the right of appeal. “In cases like Griffin and Douglas, due process concerns were involved because the States involved had set up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal. Equal protection concerns were involved because the State treated a class of defendants—indigent ones—differently for purposes of offering them a meaningful appeal.”2140

Criminal Procedure.

Criminal appeals“ [I]t is now fundamen-tal that, once established, . . . avenues [of appellate review] must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.”2141 “In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds. . . .”2142 No state may condition the right to appeal2143 or the right to file a petition for habeas corpus2144 or other form of postconviction relief upon the payment of a docketing fee or some other type of fee when the petitioner has no means to pay. Similarly, although the states are not required to furnish full and complete transcripts of their trials to indigents when excerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, either on appeal or through procedures for postconviction relief, the transcript must be provided to indigent defendants or to others unable to pay.2145 This right may not be denied by drawing a felony-misdemeanor distinction or by limiting it to those cases in which confinement is the penalty.2146 A defendant’s right to counsel is to be protected as well as the similar right of the defendant with funds.2147 The right to counsel on appeal necessarily means the right to effective assistance of counsel.2148

But, deciding a point left unresolved in Douglas, the Court held that neither the Due Process nor the Equal Protection Clause requires a state to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the state’s higher courts or in the United States Supreme Court. Due process does not require that, after an appeal has been provided, the state must always provide counsel to indigents at every stage. “Unfairness results only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.” That essentially equal protection issue was decided against the defendant in the context of an appellate system in which one appeal could be taken as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance.2149 Not even death row inmates have a constitutional right to an attorney to prepare a petition for collateral relief in state court.2150

This right to legal assistance, especially in the context of the constitutional right to the writ of habeas corpus, means that in the absence of other adequate assistance, as through a functioning public defender system, a state may not deny prisoners legal assistance of another inmate2151 and it must make available certain minimal legal materials.2152

The Criminal Sentence.

A convicted defendant may not be imprisoned solely because of his indigency. Williams v. Illinois2153 held that it was a denial of equal protection for a state to extend the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine that was also levied upon conviction. And Tate v. Short2154 held that, in situations in which no term of confinement is prescribed for an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement.

Voting and Ballot Access.

Treatment of indigency in a civil type of “fundamental interest” analysis came in Harper v. Virginia Bd. of Elections,2155 in which it was held that “a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” The Court emphasized both the fundamental interest in the right to vote and the suspect character of wealth classifications. “[W]e must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”2156

The two factors—classification in effect along wealth lines and adverse effect upon the exercise of the franchise—were tied together in Bullock v. Carter2157 in which the setting of high filing fees for certain offices was struck down under a standard that was stricter than the traditional equal protection standard but apparently less strict than the compelling state interest standard. The Court held that the high filing fees were not rationally related to the state’s interest in allowing only serious candidates on the ballot because some serious candidates could not pay the fees whereas some frivolous candidates could and that the state could not finance the costs of holding the elections from the fees when the voters were thereby deprived of their opportunity to vote for candidates of their preferences.

Extending Bullock, the Court held it impermissible for a state to deny indigents, and presumably other persons unable to pay filing fees, a place on the ballot for failure to pay filing fees, however reasonable in the abstract the fees may be. A state must provide such persons a reasonable alternative for getting on the ballot.2158 Similarly, a sentencing court in revoking probation must consider alternatives to incarceration if the reason for revocation is the inability of the indigent to pay a fine or restitution.2159

In Crawford v. Marion County Election Board,2160 however, a Court plurality held that a state may require citizens to present a government-issued photo identification in order to vote. Although Justice Stevens’ plurality opinion acknowledged “the burden imposed on voters who cannot afford . . . a birth certificate” (but added that it was “not possible to quantify . . . the magnitude of the burden on this narrow class of voters”), it noted that the state had not “required voters to pay a tax or a fee to obtain a new photo identification,” and that “the photo-identification cards issued by Indiana’s BMV are also free.”2161 Justice Stevens also noted that a burden on voting rights, “[h]owever slight . . . must be justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation,’ ”2162 and he found three state interests that were sufficiently weighty: election modernization (i.e., complying with federal statutes that require or permit the use of state motor vehicle driver’s license applications to serve various purposes connected with voter registration), deterring and detecting voter fraud, and safeguarding voter confidence. Justice Stevens’ opinion, therefore, rejected a facial challenge to the statute,2163 finding that, even though it was “fair to infer that partisan considerations may have played a significant role in the decision to enact” the statute, the statute was “supported by valid neutral justifications.”2164 Justice Scalia, in his concurring opinion, would not only have upheld the statute on its face, but would have ruled out as-applied challenges as well, on the ground that “[t]he Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation,” and, “without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional.”2165 Justice Souter, in his dissenting opinion, found the statute unconstitutional because “a State may not burden the right to vote merely by invoking abstract interests, be they legitimate or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. . . . The Indiana Voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old.”2166

Access to Courts.

In Boddie v. Connecticut,2167 Justice Harlan carried a majority of the Court with him in using a due process analysis to evaluate the constitutionality of a state’s filing fees in divorce actions that a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court found that, when the state monopolized the avenues to a pacific settlement of a dispute over a fundamental matter such as marriage— only the state could terminate the marital status—then it denied due process by inflexibly imposing fees that kept some persons from using that avenue. Justice Harlan’s opinion averred that a facially neutral law or policy that did in fact deprive an individual of a protected right would be held invalid even though as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning observation that the case was not to be taken as establishing a general right to access to the courts.

The Boddie opinion left unsettled whether a litigant’s interest in judicial access to effect a pacific settlement of some dispute was an interest entitled to some measure of constitutional protection as a value of independent worth or whether a litigant must be seeking to resolve a matter involving a fundamental interest in the only forum in which any resolution was possible. Subsequent decisions established that the latter answer was the choice of the Court. In United States v. Kras,2168 the Court held that the imposition of filing fees that blocked the access of an indigent to a discharge of his debts in bankruptcy denied the indigent neither due process nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in bankruptcy had not been monopolized by the government to the same degree as dissolution of a marriage; one may, “in theory, and often in actuality,” manage to resolve the issue of his debts by some other means, such as negotiation. While the alternatives in many cases, such as Kras, seem barely likely of successful pursuit, the Court seemed to be suggesting that absolute preclusion was a necessary element before a right of access could be considered.2169

Subsequently, on the initial appeal papers and without hearing oral argument, the Court summarily upheld the application to indigents of filing fees that in effect precluded them from appealing decisions of a state administrative agency reducing or terminating public assistance.2170

The continuing vitality of Griffin v. Illinois, however, is seen in M.L.B. v. S.L.J.,2171 where the Court considered whether a state seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for pursuing an appeal. Unlike in Boddie, the state, Mississippi, had afforded the plaintiff a trial on the merits, and thus the “monopolization” of the avenues of relief alleged in Boddie was not at issue. As in Boddie, however, the Court focused on the substantive due process implications of the state’s limiting “[c]hoices about marriage, family life, and the upbringing of children,”2172 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to have the state pay for the transcript needed for an effective appeal,2173 and that the forced dissolution of parental rights was “more substantial than mere loss of money,”2174 the Court ordered Mississippi to provide the plaintiff the court records necessary to pursue her appeal.

Educational Opportunity.

Making even clearer its ap-proach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez2175 rebuffed an intensive effort with widespread support in lower court decisions to invalidate the system prevalent in 49 of the 50 states of financing schools primarily out of property taxes, with the consequent effect that the funds available to local school boards within each state were widely divergent. Plaintiffs had sought to bring their case within the strict scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de facto wealth classification that was “suspect” or that education was a “fundamental” right and the disparity in educational financing could not therefore be justified. The Court held, however, that there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to the state’s interest in protecting and promoting local control of education.2176

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of wealth as a suspect classification failed on two levels. First, the Court noted that plaintiffs had not identified the “class of disadvantaged ‘poor’ ” in such a manner as to further their argument. That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it appear that tax-poor districts contained greater numbers of poor persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play strict scrutiny. “The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.”2177 No such class had been identified here and more importantly no one was being absolutely denied an education; the argument was that it was a lower quality education than that available in other districts. Even assuming that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice but the judiciary is unable to determine what level of quality would be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case might be; it was attacked for providing relative differences in spending and those differences could not be correlated with differences in educational quality.2178

Rodriguez clearly promised judicial restraint in evaluating challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per se suspect classification but it must be related to some interest that is fundamental, and Rodriguez doctrinally imposed a considerable barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education,2179 the case remains strongly viable. Relying on Rodriguez and distinguishing Plyler, the Court in Kadrmas v. Dickinson Public Schools2180 rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the process rejecting arguments that either “strict” or “heightened” scrutiny is appropriate. Moreover, the Court concluded, there is no constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all.2181

Abortion.

Rodriguez furnished the principal analytical basis for the Court’s subsequent decision in Maher v. Roe,2182 holding that a state’s refusal to provide public assistance for abortions that were not medically necessary under a program that subsidized all medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of the laws. As in Rodriguez, the Court held that the indigent are not a suspect class.2183 Again, as in Rodriguez and in Kras, the Court held that, when the state has not monopolized the avenues for relief and the burden is only relative rather than absolute, a governmental failure to offer assistance, while funding alternative actions, is not undue governmental interference with a fundamental right.2184 Expansion of this area of the law of equal protection seems especially limited.

Footnotes

2132
San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). [Back to text]
2133
351 U.S. 12 (1956). [Back to text]
2134
351 U.S. at 17, 18, 19. Although Justice Black was not explicit, it seems clear that the system was found to violate both the Due Process and Equal Protection Clauses. Justice Frankfurter’s concurrence dealt more expressly with the premise of the Black opinion. “It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. . . . But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed.” Id. at 23. [Back to text]
2135
372 U.S. 353 (1963). Justice Clark dissented, protesting the Court’s “new fetish for indigency,” id. at 358, 359, and Justices Harlan and Stewart also dissented. Id. at 360. [Back to text]
2136
372 U.S. at 357–58. [Back to text]
2137
Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956). [Back to text]
2138
Douglas v. California, 372 U.S. 353, 361 (1963). [Back to text]
2139
372 U.S. at 363–67. [Back to text]
2140
Evitts v. Lucey, 469 U.S. 387, 405 (1985) (holding that due process requires that counsel provided for appeals as of right must be effective). [Back to text]
2141
Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). [Back to text]
2142
Draper v. Washington, 372 U.S. 487, 496 (1963). [Back to text]
2143
Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960). [Back to text]
2144
Smith v. Bennett, 365 U.S. 708 (1961). [Back to text]
2145
Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Washington Prison Bd., 357 U.S. 214 (1958) (unconstitutional to condition free transcript upon trial judge’s certification that “justice will thereby be promoted”); Draper v. Washington, 372 U.S. 487 (1963) (unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not “frivolous”); Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional to deny free transcript upon determination of public defender that appeal was in vain); Long v. District Court, 385 U.S. 192 (1966) (indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California, 393 U.S. 367 (1969) (on filing of new habeas corpus petition in appellate court upon an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager, 384 U.S. 305 (1966). For instances in which a transcript was held not to be needed, see Britt v. North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426 U.S. 317 (1976). [Back to text]
2146
Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago, 404 U.S. 189 (1971). [Back to text]
2147
Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258 (1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748 (1967). A rule requiring a court-appointed appellate counsel to file a brief explaining reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals, 486 U.S. 429 (1988). The right is violated if the court allows counsel to withdraw by merely certifying that the appeal is “meritless” without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding California law providing that appellate counsel may limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non-frivolous issues). On the other hand, since there is no constitutional right to counsel for indigent prisoners seeking postconviction collateral relief, there is no requirement that withdrawal be justified in an Anders brief if a state has provided counsel for postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987) (counsel advised the court that there were no arguable bases for collateral relief). [Back to text]
2148
Evitts v. Lucey, 469 U.S. 387 (1985). [Back to text]
2149
Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v. Oregon, 417 U.S. 40 (1974) (statute providing, under circumscribed conditions, that indigent defendant, who receives state-compensated counsel and other assistance for his defense, who is convicted, and who subsequently becomes able to repay costs, must reimburse state for costs of his defense in no way operates to deny him assistance of counsel or the equal protection of the laws). [Back to text]
2150
Murray v. Giarratano, 492 U.S. 1 (1989) (upholding Virginia’s system under which “unit attorneys” assigned to prisons are available for some advice prior to the filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing a petition with at least one non-frivolous claim). [Back to text]
2151
Johnson v. Avery, 393 U.S. 483 (1969). [Back to text]
2152
Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 (1977). [Back to text]
2153
399 U.S. 235 (1970). [Back to text]
2154
401 U.S. 395 (1971). The Court has not yet treated a case in which the permissible sentence is “$30 or 30 days” or some similar form where either confinement or a fine will satisfy the State’s penal policy. [Back to text]
2155
383 U.S. 663, 666 (1966). The poll tax required to be paid as a condition of voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. [Back to text]
2156
383 U.S. at 668. The Court observed that “the right to vote is too precious, too fundamental to be so burdened or conditioned.” Id. at 670. [Back to text]
2157
405 U.S. 134 (1972). [Back to text]
2158
Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that Bullock was decided on the basis of restrained review. Id. at 715. [Back to text]
2159
Bearden v. Georgia, 461 U.S. 660 (1983). [Back to text]
2160
128 S. Ct. 1610 (2008). Justice Stevens’ plurality opinion was joined by Chief Justice Roberts and Justice Kennedy. Justice Scalia wrote a concurring opinion that was joined by Justices Thomas and Alito, and Justices Souter, Ginsberg, and Breyer dissented. [Back to text]
2161
128 S. Ct. at 1622, 1621. [Back to text]
2162
128 S. Ct. at 1616. [Back to text]
2163
“A facial challenge must fail where the statute has a plainly legitimate sweep.” 128 S. Ct. at 1623 (internal quotation marks omitted). [Back to text]
2164
128 S. Ct. at 1624. “[A]ll of the Republicans in the [Indiana] General Assembly voted in favor of [the statute] and the Democrats were unanimous in opposing it.” Id. at 1623. [Back to text]
2165
128 S. Ct. at 1625, 1626. [Back to text]
2166
128 S. Ct. 1627, 1643 (citations omitted). [Back to text]
2167
401 U.S. 371 (1971). [Back to text]
2168
409 U.S. 434 (1973). [Back to text]
2169
409 U.S. at 443–46. The equal protection argument was rejected by using the traditional standard of review, bankruptcy legislation being placed in the area of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart argued that Boddie required a different result, denied that absolute preclusion of alternatives was necessary, and would have evaluated the importance of an interest asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court, a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did Justice Marshall. [Back to text]
2170
Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to-4 that prevailed in Kras. See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1 (1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of indigent parent to appointed counsel when state seeks to terminate parental status, but using balancing test to determine that right was not present in this case). [Back to text]
2171
519 U.S. 102 (1996). [Back to text]
2172
519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971). [Back to text]
2173
Mayer v. Chicago, 404 U.S. 189 (1971). [Back to text]
2174
519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)). [Back to text]
2175
411 U.S. 1 (1973). The opinion by Justice Powell was concurred in by the Chief Justice and Justices Stewart, Blackmun, and Rehnquist. Justices Douglas, Brennan, White, and Marshall dissented. Id. at 62, 63, 70. [Back to text]
2176
411 U.S. at 44–55. Applying the rational justification test, Justice White would have found that the system did not use means rationally related to the end sought to be achieved. Id. at 63. [Back to text]
2177
411 U.S. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas dissenting). [Back to text]
2178
411 U.S. at 29–39. But see id. at 62 (Justice Brennan dissenting), 70, 110–17 (Justices Marshall and Douglas dissenting). [Back to text]
2179
Cf. Plyler v. Doe, 457 U.S. 202 (1982). The case is also noted for its proposition that there were only two equal protection standards of review, a proposition even the author of the opinion has now abandoned. [Back to text]
2180
487 U.S. 450 (1988). This was a 5–4 decision, with Justice O’Connor’s opinion of the Court being joined by Chief Justice Rehnquist and Justices White, Scalia, and Kennedy, and with Justices Marshall, Brennan, Stevens, and Blackmun dissenting. [Back to text]
2181
487 U.S. at 462. The plaintiff child nonetheless continued to attend school, so the requirement was reviewed as an additional burden but not a complete obstacle to her education. [Back to text]
2182
432 U.S. 464 (1977). [Back to text]
2183
432 U.S. at 470–71. [Back to text]
2184
432 U.S. at 471–74. See also Harris v. McRae, 448 U.S. 297, 322–23 (1980). Total deprivation was the theme of Boddie and was the basis of concurrences by Justices Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374, 391, 396 (1978), in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471 (1970), imposed a rational basis standard in equal protection challenges to social welfare cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority rejected the dissent’s argument that this should always be the same. See generally J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT (1956). [Back to text]