Access to Courts

The constitutions of some countries expressly provide for access to courts. For example, South Africa’s constitution (1997) states: “Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.” Some state constitutions contain a similar guarantee—New Hampshire’s 1784 constitution, for one, guarantees every citizen “a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character….”

The U.S. Constitution does not in so many words guarantee access to courts of law, but it does vouchsafe certain rights in judicial proceedings (see Criminal Law). Like the presumption of innocence, access to courts was assumed as a citizen’s right in postcolonial America. Article III, section 2, gives the Supreme Court appellate jurisdiction, which extends the right of appeal to citizens as well as the government, and requires that the “Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed….” The Bill of Rights (1791)—in particular the Fifth and Sixth Amendments—contains a number of guarantees related to trials, including the right to a speedy and public trial and the assistance of counsel. The Seventh Amendment (1791) sets a minimum threshold for suits at common law, extends the right of trial by jury (see Juries), and preserves the right of the jury to be the final arbiter of the facts in such cases.

For the wealthy and politically savvy, access to courts to further or protect their interests is generally taken for granted. But for others less well off, from the poor to certain minorities, access to courts and the justice that such access may afford has often been routinely denied by the legal system and the courts themselves. When Supreme Court Justice Thurgood Marshall declared for the Court in Bounds v. Smith (1977) that there was a “fundamental constitutional right of access to the courts,” it was to effective or “meaningful” access that he was referring.

Through a number of cases beginning in 1957, the Warren Court (1954–69) began expanding the rights of individuals to effective legal representation and to make effective appeals from decisions against them in lower courts, especially in the states. Such new rights included counsel for indigent defendants, free transcripts for defendants to use in seeking an appeal, and counsel for appeals. In 1971 the Court even held unconstitutional the requirement for a $60 filing fee to get into divorce court. Because the only way to obtain a divorce (see Families) was by court order, the filing fee was a bar to those who could not afford the fee.

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