M. L. B. v. S. L. J., 519 U.S. 102, 40 (1996)

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Cite as: 519 U. S. 102 (1996)

Thomas, J., dissenting

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 135. 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

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