294
Souter, J., dissenting
today arises. The limitation on the right to a merits brief is that no one has a right to a wholly frivolous appeal, see Anders v. California, 386 U. S. 738, 742 (1967), against which the judicial system's first line of defense is its lawyers. Being officers of the court, members of the bar are bound "not to clog the courts with frivolous motions or appeals," Polk County v. Dodson, 454 U. S. 312, 323 (1981); see also McCoy, supra, at 436, and this is of course true regardless of a lawyer's retained or appointed status in a given case. The problem to which Anders responds arises when counsel views his client's appeal as frivolous, leaving him duty barred from pressing it upon a court.2
The rub is that although counsel may properly refuse to brief a frivolous issue and a court may just as properly deny leave to take a frivolous appeal, there needs to be some reasonable assurance that the lawyer has not relaxed his partisan instinct prior to refusing,3 in which case the court's review could never compensate for the lawyer's failure of advocacy. A simple statement by counsel that an appeal has no merit, coupled with an appellate court's endorsement of counsel's conclusion, gives no affirmative indication that anyone has sought out the appellant's best arguments or championed his cause to the degree contemplated by the adversary system. Nor do such conclusions acquire any implicit per-2 Anders addressed the problem as confronted by assigned counsel, though in theory it can be equally acute when counsel is retained. It is unlikely to show up in practice, however. Paying clients generally can fire a lawyer expressing unsatisfying conclusions and will often find a replacement with a keener eye for arguable issues or a duller nose for frivolous ones. As a practical matter, the States may find it too difficult or costly to prevent moneyed appellants from wasting their own resources, and those of the judicial system, by bringing frivolous appeals. This does not mean, however, that the States are obligated to subsidize such efforts by indigents.
3 An assurance, that is, that he has not become what is known around the Los Angeles County Jail as a " 'dumptruck.' " Reply Brief for Petitioner 1.
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