author: Mr. Justice Blackmun Mr. Justice Powell, Mr. Justice Stewart,

text:
    CARDWELL, WARDEN v. LEWIS
    No. 72-1603.
    Argued March 18, 1974
    Decided June 17, 1974.

      BlackmuN, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and White and RehNQuist, JJ., joined. Powell, J., filed an opinion concurring in the result, post, p. 596. Stewart, J., filed a dissenting opinion, in which Douglas, BreNNAN, and Marshall, JJ., joined, post, p. 596.
    Leo J. Conway, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the brief were William J. Brown, Attorney General, and Nicholas R. Curd, Assistant Attorney General.

      Bruce A. Campbell, by appointment of the Court, 414 U. S. 1140, argued the cause and filed a brief for respondent.

      Andrew L. Frey argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Edward R. Korman.

   Mr. Justice Blackmun

announced the judgment of the Court and an opinion in which the Chief Justice, Mr. Justice White, and Mr. Justice Rehnquist join.

This case presents the issue of the legality, under the Fourth and Fourteenth Amendments, of a warrantless seizure of an automobile and the examination of its exterior at a police impoundment area after the car had been removed from a public parking lot.

Evidence obtained upon this examination was introduced at the respondent’s state court trial for first-degree murder. He was convicted. The Federal District Court, on a habeas corpus application, ruled that the examination was a search violative of the Fourth and Fourteenth Amendments. 354 F. Supp. 26 (SD Ohio 1972). The United States Court of Appeals for the Sixth Circuit affirmed. 476 F. 2d 467 (1973). We granted certiorari, 414 U. S. 1062 (1973), and now conclude that, under the circumstances of this case, there was no violation of the protection afforded by the Amendments.

I

In 1968 respondent Arthur Ben Lewis, Jr., was tried and convicted by a jury in an Ohio state court for the first-degree murder of Paul Radcliffe. On appeal, the Supreme Court of Ohio affirmed the judgment of conviction. State v. Lewis, 22 Ohio St. 2d 125, 258 N. E. 2d 445 (1970). This Court denied review. Lewis v. Ohio, 400 U. S. 959 (1970).

On respondent’s federal habeas application, the District Court, from the record and after an evidentiary-hearing, adduced the following facts:

On the afternoon of July 19, 1967, Radcliffe’s body was found near his car on the banks of the Olentangy River in Delaware County, Ohio. The car had gone over the embankment and had come to rest in brush. Radcliffe had died from shotgun wounds. Casts were made of tire tracks at the scene, and foreign paint scrapings were removed from the right rear fender of Radcliffe’s automobile.

Within five days of Radcliffe’s death, the investigation began to focus upon respondent Lewis. It was learned that Lewis knew Radcliffe. Lewis had been negotiating the sale of a business and had executed a contract of sale. The purchaser, Jack Smith, employed Radcliffe,. an accountant, to examine Lewis’ books. Police went to Lewis’ place of business to question him and there observed the model and color of his car in the thought that it might have been used to push the Radcliffe vehicle over the embankment. Not until several months later, however, in late September, was Lewis again questioned. On October 9, he was asked to appear the next morning at the Office of the Division of Criminal Activities in Columbus for further interrogation.

On October 10, at 8 a. m., a warrant for respondent’s arrest was obtained. The District Court found that at this time, in addition to probable cause for the arrest, the police also had probable cause to believe that Lewis’ ear was used in the commission of the crime. An automobile similar to his had been observed leaving the scene; the color of his vehicle was similar to the color of the paint scrapings from the victim’s car; in a telephone call to Mrs. Smith, made by a person who said he was Radcliffe, but proved not to be, the caller made statements that, if true, would benefit only Lewis; he had had body repair work done on the grille, hood, right front fender, and other parts of his car on the day following the crime; and the victim’s desk calendar for the day of his death showed the notation, “Call Ben Lewis.”

Respondent Lewis complied with the request to appear. He drove his car to the Activities Office, placed it in a public commercial parking lot a half block away, and arrived shortly after 10 a. m. Although the police were in possession of the arrest warrant for the entire period that Lewis was present, he was not served with that warrant or arrested until late that afternoon, at approximately 5 p. m. Two hours earlier, Lewis had been permitted to call his lawyer, and two attorneys were present on his behalf in the office at the time of the formal arrest. Upon the arrest, Lewis’ car keys and the parking lot claim check were released to the police. A tow truck was dispatched to remove the car from the parking lot to the police impoundment lot.

The impounded car was examined the next day by a technician from the Ohio Bureau of Criminal Investigation. The tread of its right rear tire was found to match the cast of a tire impression made at the scene of the crime. The technician testified that, in his opinion, the foreign paint on the fender of Radcliffe’s car was not different from the paint samples taken from respondent’s vehicle, that is, there was no difference in color, texture, or order of layering of the paint.

The District Court concluded that the seizure and examination of Lewis’ car were violative of the Fourth and Fourteenth Amendments, and that the evidence obtained therefrom should have been excluded at the state court trial. The court, accordingly, issued a writ of habeas corpus requiring the State to “initiate action for a new trial of” respondent within 90 days or, in the alternative, to release him. 354 F. Supp., at 44. The Court of Appeals, in affirming, held that the scraping of paint from the exterior of Lewis’ car was in fact a search, within the meaning of the Fourth Amendment; that there was no consent to that search; that it was not incident to Lewis’ arrest; and that the seizure of the car could not be justified on the ground that the vehicle was an instrumentality of the crime in plain view.

II

This case is factually different from prior car search cases decided by this Court. The evidence with which we are concerned is not the product of a “search” that implicates traditional considerations of the owner’s privacy-interest. It consisted of paint scrapings from the exterior and an observation of the tread of a tire on an operative wheel. The issue, therefore, is whether the examination of an automobile’s exterior upon probable cause invades a right to privacy which the interposition of a warrant requirement is meant to protect. This is an issue this Court has not previously addressed.

The common-law notion that a warrant to search and seize is dependent upon the assertion of a superior government interest in property, see, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765), and the proposition that a warrant is valid “only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it,” Couled v. United States, 255 U. S. 298, 309 (1921), were explicitly rejected as controlling Fourth Amendment considerations in Warden v. Hayden, 387 U. S. 294, 302-306 (1967). Rather than property rights, the primary object of the Fourth Amendment was determined to be the protection of privacy. Id., at 305-306. And it had been said earlier: “The decisions of this Court have time and again underscored the essential purpose of the Fourth Amendment to shield the citizen from unwarranted intrusions into his privacy.” Jones v. United States, 357 U. S. 493, 498 (1958). See also Schmerber v. California, 384 U. S. 757, 769-770 (1966); Katz v. United States, 389 U. S. 347, 350 (1967); United States v. Dionisio, 410 U. S. 1, 14-15 (1973).

At least since Carroll v. United States, 267 U. S. 132 (1925), the Court has recognized a distinction between the warrantless search and seizure of automobiles or other movable vehicles, on the one hand, and the search of a home or office, on the other. Generally, less stringent warrant requirements have been applied to vehicles. In Chambers v. Maroney, 399 U. S. 42, 49 (1970), the Court chronicled the development of car searches and seizures. An underlying factor in the Carroll-Chambers line of decisions has been the exigent circumstances that exist in connection with movable vehicles. “[Tjhe circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable.” Chambers v. Maroney, 399 U. S., at 50-51. This is strikingly true where the automobile's owner is alerted to police intentions and, as a consequence, the motivation to remove evidence from official grasp is heightened.

There is still another distinguishing factor. “The search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one’s person or of a building.” Almeida-Sanchez v. United States, 413 U. S. 266, 279 (1973) (Powell, J., concurring). One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view. See People v. Case, 220 Mich. 379, 388-389, 190 N. W. 289, 292 (1922). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S., at 351; United States v. Dionisio, 410 U. S., at 14. This is not to say that no part of the interior of an automobile has Fourth Amendment protection; the exercise of a desire to be mobile does not, of course, waive one’s right to be free of unreasonable government intrusion. But insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.

In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the “search” limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. Stated simply, the invasion of privacy, “if it can be said to exist, is abstract and theoretical.” Air Pollution Variance Board v. Western Alfalfa Corp., 416 U. S. 861, 865 (1974). Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.

Here, it has been established and is conceded that the police had probable cause to search Lewis’ car. An automobile similar in color and model to his car had been seen leaving the scene of the crime. This similarity was corroborated by comparison of the paint scrapings taken from the victim’s car with the color and paint of Lewis’ automobile. Lewis had had repair work done on his car immediately following the death of the victim. And he had a nexus with Radcliffe on the day of death. All this provided reason to believe that the car was used in the commission of the crime for which Lewis was arrested. Cooper v. California, 386 U. S. 58, 61 (1967).

Ill

Concluding, as we have, that the examination of the exterior of the vehicle upon probable cause was reasonable, we have yet to determine whether the prior impoundment of the automobile rendered that examination a violation of the Fourth and Fourteenth Amendments. We do not think that, because the police impounded the car prior to the examination, which they could have made on the spot, there is a constitutional barrier to the use of the evidence obtained thereby. Under the circumstances of this case, the seizure itself was not unreasonable.

Respondent asserts that this case is indistinguishable from Coolidge v. New Hampshire, 403 U. S. 443 (1971). We do not agree. The present case differs from Coolidge both in the scope of the search and in the circumstances of the seizure. Since the Coolidge car was parked on the defendant's driveway, the seizure of that automobile required an entry upon private property. Here, as in Chambers v. Maroney, 399 U. S. 42 (1970), the automobile was seized from a public place where access was not meaningfully restricted. This is, in fact, the ground upon which the Coolidge plurality opinion distinguished Chambers, 403 U. S., at 463 n. 20. See also Cady v. Dombrowski, 413 U. S. 433, 446-447 (1973).

In considering whether the lack of a warrant to seize a vehicle invalidates the otherwise legal examination of the car, Chambers is highly pertinent. In Chambers, four men in an automobile were arrested shortly after an armed robbery. The Court concluded that there was probable cause to arrest and probable cause to search the vehicle. The car was taken from the highway to the police station where, some time later, a search producing incriminating evidence, was conducted. We stated:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
“. . . The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” 399 U. S., at 52.

The fact that the car in Chambers was seized after being stopped on a highway, whereas Lewis’ car was seized from a public parking lot, has little, if any, legal significance. The same arguments and considerations of exigency, immobilization on the spot, and posting a guard obtain. In fact, because the interrogation session ended with awareness that Lewis had been arrested and that his car constituted incriminating evidence, the incentive and potential for the car’s removal substantially-increased. There was testimony at the federal hearing that Lewis asked one of his attorneys to see that his wife and family got the car, and that the attorney relinquished the keys to the police in order to avoid a physical confrontation. 354 F. Supp., at 33. In Chambers, all occupants of the car were in custody and there were no means of relating this fact or the location of the car (if it had not been impounded) to a friend or confederate. Chambers also stated that a search of the car on the spot was impractical because it was dark and the search could not be carefully executed. 399 U. S., at 52 n. 10. Here too, the seizure facilitated the type of close examination necessary.

Respondent contends that here, unlike Chambers, probable cause to search the car existed for some time prior to arrest and that, therefore, there were no exigent circumstances. Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practicable moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of arrest. Cf. Chambers, id., at 50-51. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Mr. Justice Powell,

concurring in the result.

I would reverse the judgment of the Court of Appeals for the reasons set forth in my concurring opinion in Schneckloth v. Bustamonte, 412 U. S. 218, 250 (1973). As stated therein, I would hold that “federal collateral review of a state prisoner’s Fourth Amendment claims— claims which rarely bear on innocence — should be confined solely to the question of whether the petitioner [for habeas corpus] was provided a fair opportunity to raise and have adjudicated the question in state courts.” Ibid. In this case there is no contention that respondent was denied a full and fair opportunity to litigate his claim in the state courts.

Mr. Justice Stewart,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join,

dissenting.

The most fundamental rule in this area of constitutional law is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357; Coolidge v. New Hampshire, 403 U. S. 443, 454-455. See also Camara v. Municipal Court, 387 U. S. 523, 528-529. Since there was no warrant authorizing the search and seizure in this case, and since none of the “specifically established and well-delineated exceptions” to the warrant requirement here existed, I am convinced the judgment of the Court of Appeals must be affirmed.

In casting about for some way to avoid the impact of our previous decisions, the plurality opinion first suggests, ante, at 588-589, that no “search” really took place in this case, since all that the police did was to scrape paint from the respondent's car and make observations of its tires. Whatever merit this argument might possess in the abstract, it is irrelevant in the circumstances disclosed by this record. The argument is irrelevant for the simple reason that the police, before taking the paint scrapings and looking at the tires, first took possession of the car itself. The Fourth and Fourteenth Amendments protect against “unreasonable searches and seizures,” and there most assuredly was a seizure here.

The plurality opinion next seems to suggest that the basic constitutional rule can be overlooked in this case because the subject of the seizure was an automobile. It is true, of course, that a line of decisions, beginning with Carroll v. United States, 267 U. S. 132, have recognized a so-called “automobile exception” to the constitutional requirement of a warrant. But “[t]he word 'automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge, supra, at 461-462. Rather, the Carroll doctrine simply recognizes the obvious — that a moving automobile on the open road presents a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll, supra, at 153. See also Almeida-Sanchez v. United States, 413 U. S. 266, 269. Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. See, e. g., Coolidge, supra; Preston v. United States, 376 U. S. 364.

The facts of this case make clear beyond peradventure that the “automobile exception” is not available to uphold the warrantless seizure of the respondent’s car. Well before the time that the automobile was seized, the respondent — and the keys to his car — were securely within police custody. There was thus absolutely no likelihood that the respondent could have either moved the car or meddled with it during the time necessary to obtain a search warrant. And there was no realistic possibility that anyone else was in a position to do so either. I am at a loss, therefore, to understand the plurality opinion’s conclusion, ante, at 595, that there was a “potential for the car’s removal” during the period immediately preceding the car’s seizure. The facts of record can only support a diametrically opposite conclusion.

Finally, the plurality opinion suggests that other “exigent circumstances” might have excused the failure of the police to procure a warrant. The opinion nowhere states what these mystical exigencies might have been, and counsel for the petitioner has not been so inventive as to suggest any. Since the authorities had taken care to procure an arrest warrant even before the respondent arrived for questioning, it can scarcely be said that probable cause was not discovered until so late a point in time as to prevent the obtaining of a warrant for seizure of the automobile. And, with the automobile effectively immobilized during the period of the respondent’s interrogation, the fear that evidence might be destroyed was hardly an exigency, particularly when it is remembered that no such fear prompted a seizure during all the preceding months while the respondent, though under investigation, had been in full control of the car. This is, quite simply, a case where no exigent circumstances existed.

Until today it has been clear that “[n] either Carroll... nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.”. Chambers v. Maroney, 399 U. S. 42, 50. I would follow the settled constitutional law established in our decisions and affirm the judgment of the Court of Appeals.

       The arrest warrant was obtained in Delaware County, where the crime was committed. The Activities Office is in adjacent Franklin County. In Ohio, an arrest warrant may be served in any county of the State. Ohio Rev. Code Ann. §2941.36 (1953). In contrast, a search warrant in Ohio may be issued by a judge or magistrate only “within his jurisdiction.” Ohio Rev. Code Ann. §2933.21 (Supp. 1972). Thus, a search warrant obtained in Delaware County is not valid in Franklin County.

       The call was made at about 9:30 a. m. on July 19 by a man who identified himself to Mrs. Smith as Radcliffe and who stated that the books were in “A-l condition.” Mrs. Smith, who knew the victim, did not identify the caller as Radcliffe. Gunshots were heard between 8 a. m. and 8:30 a. m. that day by two women who lived near the site of the crime. It thus became clear that someone had impersonated Radcliffe in making the telephone call.

       The calendar’s page for July 19 was missing. Investigation disclosed a writing indentation, on the next and underlying page for July 20, which indicated what had been written on the page for July 19.

       Apparently, the car’s trunk was also opened and a tire in the trunk was observed. 354 F. Supp. 26, 33; 476 F. 2d 467, 468. No evidence obtained from any part of the interior of the vehicle, however, was introduced.

       The Court there discussed the following post -Carroll cases: Busty v. United States, 282 U. S. 694 (1931); Scher v. United States, 305 U. S. 251 (1938); Brinegar v. United States, 338 U. S. 160 (1949); Preston v. United States, 376 U. S. 364 (1964); Cooper v. California, 386 U. S. 58 (1967); Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968). Cases decided since Chambers and that now might be added to the list include Coolidge v. New Hampshire, 403 U. S. 443 (1971); Almeida-Sanchez v. United States, 413 U. S. 266 (1973); Cady v. Dombrowski, 413 U. S. 433 (1973). See also Harris v. United States, 390 U. S. 234 (1968); Note, Warrantless Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835 (1974).

       Petitioner contends that Lewis’ car keys and the parking lot claim check were seized in plain view as an incident to his arrest, and that this seizure served to transfer constructive possession of the vehicle which could then be searched and seized as an instrumentality of the crime. We feel that the District Court and the Court of Appeals were correct in rejecting this argument. Irrespective of the plain-view or instrumentality analyses, the concept of constructive possession has not been found to justify the search or seizure of an item not in actual possession.

       As has been noted, the arrest was made at the Office of the Division of Criminal Activities; but the examination of the vehicle took place some time later at the police impoundment lot. This difference in time and place eliminates any search-incident-to-an-arrest contention.
      “The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction. of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifica^ tions are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Preston v. United States, 376 U. S. 364, 367 (1964). See also Chambers v. Maroney, 399 U. S. 42, 47 (1970).

       Again, we are not confronted with any issue as to the propriety of a search of a car’s interior. “Neither Carroll, supra, nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.” Id., at 50.

        Coolidge concerned a thorough and extensive search of the entire automobile including the interior from which, by vacuum sweepings, incriminating evidence was obtained. A search of that kind raises different and additional considerations not present in the examination of a tire on an operative wheel and in the taking of exterior paint samples from the vehicle in the present case for which there was no reasonable expectation of privacy.

       Before the District Court, the State argued that Lewis had consented to the seizure of his car by requesting that the police impound it for safekeeping. The District Court stated:
      “Viewing the evidence in the light most favorable to the State, petitioner [Lewis] did not clearly and unequivocally consent to the seizure and search of the automobile. The testimony . . . established, at most, that petitioner consented to their taking custody of the car for safekeeping. There is no evidence that petitioner consented, expressly or impliedly, to a seizure of the automobile for purposes of a search. .. .” 354 F. Supp., at 37-38.
      Inasmuch as we hold the seizure to be justified under Chambers, we do not reach the issue of Lewis’ consent.

       To make a comparison with a paint scraping required that a section of the painted exterior that had not been recently repaired be sampled. This conceivably could necessitate several scrapings if the first sample was not conclusive after laboratory analysis. Similarly, to make a cast of the tire tread on the operative wheel would require laboratory equipment.

       We do not address the question found to be determinative in Mr. Justice Powell’s opinion concurring in the result. This question was not raised or briefed by the parties.

       This dissent is directed toward the search-and-seizure analysis in Mr. Justice Blackmun's plurality opinion. Like the plurality, I do not consider the issue raised by Mr. Justice Powell's concurrence, it having been neither briefed nor argued by the parties.

       Even the Solicitor General, who appeared as amicus curiae urging a reversal of the .Court of Appeals’ judgment in this case, has candidly admitted in his brief that “no satisfactory reason appears for the failure of the law enforcement officers to have obtained a warrant — there appears on the facts of this case to have been no real likelihood that respondent would have destroyed or concealed the evidence sought during the time required to seek and procure a warrant.” Brief for United States as Amicus Curiae 4-5.

       It can hardly be argued that the questioning of the respondent by the police for the first time alerted him to their intentions, thus suddenly providing him a motivation to remove the car from “official grasp.” Ante, at 590, 595. Even putting to one side the question of how the respondent could have acted to destroy any evidence while he was in police custody, the fact is that he was fully aware of official suspicion during several months preceding the interrogation. He had been questioned on several occasions prior to his arrest, and he had been alerted on the day before the interrogation that the police wished to see him. Nonetheless, he voluntarily drove his car to Columbus to keep his appointment with the investigators.

       The plurality opinion correctly rejects, ante, at 591-592, n. 7, the petitioner’s contention that the seizure here was incident to the arrest of the respondent. “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Preston v. United States, 376 U. S. 364, 367.


source: Caselaw Access Project

author: Mr. Justice Rehnquist Mr. Justice Douglas,

license: Public Domain

text:
    ROSS et al. v. MOFFITT
    No. 73-786.
    Argued April 22, 1974
    Decided June 17, 1974

      Rehnquist, J., delivered the opinion of the Court, in which BüRger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 619.

      Jacob L. Safron, Assistant Attorney General of North Carolina, argued the cause for petitioners. With him on the brief was Robert Morgan, Attorney General.

      Thomas B. Anderson, Jr., by appointment of the Court, 415 U. S. 909, argued the cause and filed a brief for respondent.

      Briefs of amici curiae urging reversal were filed by Robert L. Shevin, Attorney General, and Enoch J. Whitney, Assistant Attorney General, for the State of Florida; by William J. Scott, Attorney General, and James B. Zagel, Assistant Attorney General, for the State of Illinois; and by Andrew P. Miller, Attorney General, and Robert E. Shepherd, Jr., Assistant Attorney General, for the Commonwealth of Virginia.

        Marshall J. Hartman and James F. Flug filed a brief for the National Legal Aid and Defender Assn, as amicus curiae- urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

We are asked in this case to decide whether Douglas v. California, 372 U. S. 353 (1963), which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications for review in this Court. The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

I

The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both eases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indi-gency was represented at trial by court-appointed counsel. He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed. At this point the procedural histories of the two cases diverge.

Following affirmance of his Mecklenburg County conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklen-burg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971. Relief was denied at that time, and respondent’s appeal to the Court of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied. Respondent appealed that denial to the Court of Appeals for the Fourth Circuit.

Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent’s first appeal. The North Carolina Supreme Court denied certiorari. Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts. After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina. That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit.

The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated:

“As long as the state provides such procedures and allows other convicted felons to seek access to the higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court.”

This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals, “[t]he same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.”

We granted certiorari, 414 U. S. 1128, to consider the Court of Appeals’ decision in light of Douglas v. California, and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits. For the reasons hereafter stated we reverse the Court of Appeals.

II

This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In Griffin v. Illinois, 351 U. S. 12 (1956), the first of the pertinent cases, the Court had before it an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial. No exception was made for the indigent defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial error. Mr. Justice Frankfurter, who cast the deciding voté, said in his concurring opinion:

. . Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court.” Id., at 22.

The Court in Griffin held that this discrimination violated the Fourteenth Amendment.

Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. McKane v. Durston, 153 U. S. 684 (1894). The cases encompassed a variety of circumstances but all had a common theme. For example, Lane v. Brown, 372 U. S. 477 (1963), involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application. If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse. In Draper v. Washington, 372 U. S. 487 (1963), the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous. The appealing defendant was in effect bound by the trial court’s conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him. In Smith v. Bennett, 365 U. S. 708 (1961), Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in Burns v. Ohio, 360 U. S. 252 (1959), the State of Ohio required a $20 filing fee in order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction. Each of these state-imposed financial barriers to the adjudication of a criminal defendant’s appeal was held to violate the Fourteenth Amendment.

The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. In Douglas v. California, 372 U. S. 353 (1963), however, a case decided the same day as Lane, supra, and Draper, supra, the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent’s access to the appellate system was adequate. The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right. It is this decision we are asked to extend today.

Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that “ ’no good whatever could be served by appointment of counsel/ ” 372 U. S., at 355. It therefore denied petitioners’ request for the appointment of counsel.

This Court held unconstitutional California’s requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. The Court noted that under this system an indigent’s case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary “ex parte examination of the record,” id., at 356, but had their arguments presented to the court in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say:

“We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction ... or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an 'invidious discrimination.’ Williamson v. Lee Optical Co., 348 U. S. 483, 489; Griffin v. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them.” Id., at 356-357.

The precise rationale for the Griffin and Douglas fines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment. Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors. “Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. “Equal protection,” on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. We will address these issues separately in the succeeding sections.

Ill

Recognition of the due process rationale in Douglas is found both in the Court’s opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that “[w]hen an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure.” 372 U. S., at 357. Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended consideration, remarking: “The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause.” Id., at 363.

We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U. S. 335 (1963). But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id., at 344.

By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U. S. 684 (1894). The fact that an appeal has been provided does not automatically mean that 'a State then acts unfairly by refusing to provide counsel to' indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.

IV

Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas, for example, stated:

“[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” 372 U. S., at 357. (Emphasis in original.)

The Court in Burns v. Ohio, stated the issue in the following terms:

“[0]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.” 360 U. S., at 257.

Despite the tendency of all rights “to declare themselves absolute to their logical extreme,” there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles' recognized in other decisions of this Court. The Fourteenth Amendment “does not require absolute equality or precisely equal advantages,” San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 24 (1973), nor does it require the ¡State to “equalize economic conditions.” Griffin v. Illinois, 351 U. S., at 23 (Frankfurter, J., concurring). It does require that the state appellate system be “free of unreasoned distinctions,” Rinaldi v. Yeager, 384 U. S. 305, 310 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U. S. 487 (1963). The State cannot adopt procedures which leave an indigent defendant “entirely cut off from any appeal at all,” by virtue of his indigency, Lane v. Brown, 372 U. S., at 481, or extend to such indigent defendants merely a “meaningless ritual” while others in better economic circumstances have a “meaningful appeal.” Douglas v. California, supra, at 358. The question is not one of absolutes, but one of degrees. In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.

A. The North Carolina appellate system, as are the appellate systems of almost half the States, is multi-tiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals was created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the caseload previously burdening the Supreme Court. In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals. N. C. Gen. Stat. § 7A-27 (1969 and Supp. 1973). A second appeal of right lies to the Supreme Court in any criminal case “(1) [w]hich directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) [i]n which there is a dissent. . . .” N. C. Gen. Stat. § 7A-30 (1969). All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis.

The statute governing discretionary appeals to the Supreme Court is N. C. Gen. Stat. § 7A-31 (1969). This statute provides, in relevant part, that “[i]n any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals.” The statute further provides that “[i]f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.” The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards. Subsection (c) of this provision states:

“In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.”

Appointment of counsel for indigents in North Carolina is governed by N. C. Gen. Stat. § 7A-450 et seq. (1969 and Supp. 1973). These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here, have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right. Thus North Carolina has followed the mandate of Douglas v. California, supra, and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here.

B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and passed upon by an appellate court.” Douglas v. California, 372 U. S., at 356. We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court. At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.

We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been “a correct adjudication of guilt” in every individual case, see Griffin v. Illinois, 351 U. S., at 18, but rather whether “the subject matter of the appeal has significant public interest,” whether “the cause involves legal principles of major significance to the jurisprudence of the State,” or whether the decision below is in probable conflict with a decision of the Supreme Court. The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, see Peaseley v. Virginia Iron, Coal & Coke Co., 282 N. C. 585, 194 S. E. 2d 133 (1973), since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above. Once a defendant’s claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review.

This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him. An indigent defendant seeking review in the Supreme Court of North Carolina is- therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding. But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas. And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained‘by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process. We think respondent was given that opportunity under the existing North Carolina system.

y

Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant’s only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This Court’s review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review.

There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed.

The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e. g., Drumm v. California, 373 U. S. 947 (1963); Mooney v. New York, 373 U. S. 947 (1963); Oppenheimer v. California, 374 U. S. 819 (1963). In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to impose such a requirement on the States, and we decline to do so.

VI

We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court. Our reading of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no right secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review.

The judgment of the Court of Appeals’ holding to the contrary is

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall concur,

dissenting.

I would affirm the judgment below because I am in agreement with the opinion of Chief Judge Haynsworth for a unanimous panel in the Court of Appeals. 483 F. 2d 650.

In Douglas v. California, 372 U. S. 353, we considered the necessity for appointed counsel on the first appeal as of right, the only issue before us. We did not deal with the appointment of counsel for later levels of discretionary review, either to the higher state courts or to this Court, but we noted that "there can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount of money he has.’ ” Id., at 355.

Chief Judge Haynsworth could find “no logical basis for differentiation between appeals of right and permissive review procedures in the context of the Constitution and the right to counsel.” 483 F. 2d, at 653. More familiar with the functioning of the North Carolina criminal justice system than are we, he concluded that “in the context of constitutional questions arising in criminal prosecutions, permissive review in the state’s highest court may be predictably the most meaningful review the conviction will receive.” Ibid. The North Carolina Court of Appeals, for example, will be constrained in diverging from an earlier opinion of the State Supreme Court, even if subsequent developments have rendered the earlier Supreme Court decision suspect. “[T]he state's highest court remains the ultimate arbiter of the rights of its citizens.” Ibid.

Chief Judge Haynsworth also correctly observed that the indigent defendant proceeding without counsel is at a substantial disadvantage relative to wealthy defendants represented by counsel when he is forced to fend for himself in seeking discretionary review from the State Supreme Court or from this Court. It may well not be enough to allege error in the courts below in layman's terms; a more sophisticated approach may be demanded:

“An indigent defendant is as much in need of the assistance of a lawyer in preparing and filing a petition for certiorari as he is in the handling of an appeal as of right. In many appeals, an articulate defendant could file an effective brief by telling his story in simple language without legalisms, but the technical requirements for applications for writs of certiorari are hazards which one untrained in the law could hardly be expected to negotiate.
“ ‘Certiorari proceedings constitute a highly specialized aspect of appellate work. The factors which [a court] deems important in connection with deciding whether to grant certiorari are certainly not within the normal knowledge of an indigent appellant. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783, 797 (1961) (footnote omitted).’ ” 483 F. 2d, at 653.

Furthermore, the lawyer who handled the first appeal in a case would be familiar with the facts and legal issues involved in the case. It would be a relatively easy matter for the attorney to apply his expertise in filing a petition for discretionary review to a higher court, or to advise his client that such a petition would have no chance of succeeding.

Douglas v. California was grounded on concepts of fairness and equality. The right to seek discretionary review is a substantial one, and one where a lawyer can be of significant assistance to an indigent defendant. It was correctly perceived below that the “same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.” Id., at 655.

       483 F. 2d 650 (1973).

        State v. Moffitt, 9 N. C. App. 694, 177 S. E. 2d 324 (1970) (Mecklenburg); State v. Moffitt, 11 N. C. App. 337, 181 S. E. 2d 184 (1971) (Guilford).

        State v. Moffitt, 279 N. C. 396, 183 S. E. 2d 247 (1971).

       483 F. 2d, at 654.

         Id., at 655. The court then decided to remand the case to the District Court to “appraise the substantiality of the federal claim.” The court noted that it had no opportunity to examine the papers filed in the State Supreme Court and said that “[i]n the circumstances of this case . . . , where the only remedy available to the District Court would be the prisoner’s release on a writ of habeas corpus,” it was appropriate for the District Court to determine whether respondent’s claim was “patently frivolous.” Ibid.

       See United States ex rel. Pennington v. Pate, 409 F. 2d 757 (CA7 1969); Peters v. Cox, 341 F. 2d 575 (CA10 1965).

       See 351 U. S., at 13 n. 2.

       The Court of Appeals in this case, for example, examined both possible rationales, stating:
      “If the holding [in Douglas] be grounded on the equal protection clause, inequality in the circumstances of these cases is as obvious as it was in the circumstances of Douglas. If the holding in Douglas were grounded on the due process clause, and Mr. Justice Harlan in dissent thought the discourse should have been in those terms, due process encompasses elements of equality. There simply cannot be due process of the law to a litigant deprived of all professional assistance when other litigants, similarly situated, are able to obtain professional assistance and to be benefited by it. The same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.” 483 F. 2d, at 655.

        Hudson County Water Co. v. McCarter, 209 U. S. 349 355 (1908).

       See Brief for Respondent 9 n. 5.

       For example, subsection (b) (6) of § 7A-451, effective at the time of respondent’s appeals, provides for counsel on “[djirect review of any judgment or decree, including review by the United States Supreme Court of final judgment <jr decrees rendered by the highest court of North Carolina in which decision may be had.” But this provision apparently has not been construed to allow counsel for permissive appellate procedures. See 483 F. 2d, at 652.

       Section 7A-451 of N. C. Gen. Stat. (Supp. 1973) provides:
      “(a) An indigent person is entitled to services of counsel in the following actions and proceedings:
      “(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;
      “(2) A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;
      “(3) A post-conviction proceeding under Chapter 15 of the General Statutes;
      “ (4) A hearing for revocation of probation, if confinement is likely to be adjudged as a result of the hearing;
      “(5) A hearing in which extradition to another state is sought;
      “(6) A proceeding for judicial hospitalization under Chapter 122, Article 7 (Judicial Hospitalization) or Article 11 (Mentally Ill Criminals), of the General Statutes and a proceeding for involuntary commitment to a treatment facility under Article 5 of Chapter 122 of the General Statutes;
      “(7) A civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes; and
      “(8) In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible.”

      An indigent defendant proceeding without the assistance of counsel would be attempting to satisfy one of three statutory standards for review when seeking certiorari from the North Carolina Supreme Court:
      “(1) The subject matter of the appeal has significant public interest, or
      “(2) The cause involves legal principles of major significance to the jurisprudence of the State, or
      “(3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.” N. C. Gen. Stat. § 7A-31 (c) (1969).
      It seems likely that only the third would have been explored in a brief on the merits before the Court of Appeals, and the indigent defendant would draw little assistance from that brief in attempting to satisfy either of the first two standards.
      Rule 19 of this Court provides some guidelines for the exercise of our certiorari jurisdiction, including decisions by a state court on federal questions not previously decided by this Court; but it may not be enough simply to assert that there was error in the decision of the court below. Cf. Magnum Import Co. v. Coty, 262 U. S. 159, 163. Moreover, this Court is greatly aided by briefs prepared with accuracy, brevity, and clarity in its determination of whether certi-orari should be granted. See Furness, Withy & Co. v. Yang-Tsze Insurance Assn., 242 U. S. 430, 434.


author: Per Curiam.

text:
    MOODY et al. v. ALBEMARLE PAPER CO. et al.
    No. 73-899.
    Decided June 17, 1974
   Per Curiam.

Appeals from the judgments of the trial courts in two cases were heard and determined by two separate three-judge divisions of the Court of Appeals for the Fourth Circuit. Sitting by designation as members of each of the divisions were senior judges of the Fourth Circuit. Following decisions by both divisions, the unsuccessful parties petitioned for rehearings in banc pursuant to 28 U. S. C. § 46 (c):

“Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service. A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof.” (Emphasis added.)

It had been the practice of the Fourth Circuit to count the votes of their senior judges who were members of the original hearing division when the court acted on the question whether to order a rehearing in banc. In those cases, however, the votes of the senior judges were not crucial. Certificate 3. Here, their votes are crucial. In Moody, while a “majority of the circuit judges of the circuit who are in regular active service” did not vote for a rehearing in banc, the two senior judges who sat on the division by designation did so vote; their votes, if counted, would make a majority for rehearing. In Williams, while a majority of Circuit Judges in regular active service did vote for a rehearing in banc, the senior judge who sat on the original division by designation voted against rehearing; with his vote counted the rehearing would fail by an equal division of those voting.

Accordingly, all Circuit Judges of the Fourth Circuit in regular active service and both senior judges of the Circuit have, pursuant to 28 U. S. C. § 1254 (3), certified to us the question whether a senior judge of the circuit who was a member of the original division hearing a case may vote to determine whether the case should be reheard in banc. Because of the importance of the question to the administration of judicial business in the circuits, as well as to the parties in the two cases pending in the Fourth Circuit, we granted leave to and invited those parties to file briefs in response to the question certified. Upon consideration of the question and the briefs filed by the litigants on both sides of both pending cases, we conclude that the answer should be in the negative; senior circuit judges who are members of the originally assigned division hearing a case are not authorized by Congress to participate in the determination whether to rehear that case in banc.

The power of courts of appeals to hear or rehear cases in banc was first determined in Textile Mills Corp. v. Commissioner, 314 U. S. 326 (1941). In 1948, Congress provided legislative ratification of Textile Mills by enacting § 46 (c) of the Judicial Code, which then provided that hearings or rehearings before courts of appeals in banc were to be:

“ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.” 28 U. S. C. §46 (c) (1952 ed.). (Emphasis added.)

In the Western Pacific Railroad Case, 345 U. S. 247 (1953), the Court had occasion to construe the 1948 statute, and determined that it was a grant of power to the courts of appeals to order hearings or rehearings in banc, not the creation of a right in litigants to compel such hearings or rehearings or even to compel the court to vote on the question of hearing or rehearing. The Court also addressed itself to the procedure governing the exercise of this power, holding that each court of appeals was “left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.” Id., at 250. This discretion has been subsequently confirmed. Shenker v. Baltimore & Ohio R. Co., 374 U. S. 1, 5 (1963); United States v. American-Foreign S. S. Corp., 363 U. S. 685, 688 (1960).

In one of these latter cases, American-Foreign, a question arose under the language of the 1948 statute whether, if rehearing in banc was voted, senior judges were eligible to participate in the decision of that case on the merits. The Court held that senior judges were not eligible to sit. Congress in 1963 then enacted the present version of §46 (c), which provides that a senior judge who sat on the original division hearing a case is “competent to sit as a judge of the court in banc” in the merits rehearing of the case. (Emphasis added.) But the language of the statute concerning how the court orders a rehearing in banc was not changed, except to reinforce the limitation on the grant of power by adding “regular” before “active service,” sharpening the definition of which judges may participate in ordering a hearing or rehearing in banc.

The language of the present statute thus confines the power to order a rehearing in banc to those circuit judges who are in “regular active service.” Although, as the Court has held, those judges are largely free to devise whatever procedures they choose to initiate the process of decision to order such a rehearing, and to decide who may participate in those preliminary procedures, see n. 3, supra, neither the Court nor Congress has suggested that any other than a regular active service judge is eligible to participate in the making of the decision whether to hear or rehear a case in'banc. Obviously such a decision can be reached only by voting. As revealed by the decisional and statutory evolution of the institution of the in banc court, the eligibility of senior judges for participation therein has been the exception, not the rule. We are not at liberty to engraft upon the statute a meaning inconsistent with its historical limitations.

Indeed, the very purpose of the in banc court supports our conclusion that senior judges have not been authorized by implication to participate in ordering a hearing or rehearing in banc. As the Federal Rule indicates, supra, n. 2, the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain, uniformity of decision within the circuit. In the wise use of this exceptional power to “ 'determine the major doctrinal trends of the future’ ” for a particular circuit, American-Foreign, 363 U. S., at 690, Congress appears to have contemplated the need for an intimate and current working knowledge of, among other things, the decisions of the circuit, its pending cases, and the magnitude and nature of its future workload. Senior judges provide a judicial resource of extraordinary value by their willingness to undertake important assignments “without economic incentive of any kind.” Id., at 688 n. 4. Consistent therewith, Congress has provided that when a senior judge has participated in the original division hearing, such senior judge may later sit on an in banc court rehearing that case; this was the purpose of the 1963 amendment to the Judicial Code. But voting on the meats of an in banc case is quite different from voting whether to rehear a case in banc, which is essentially a policy decision of judicial administration. Congress vested this latter authority and responsibility exclusively in “circuit judges of the circuit who are in regular active service,” 28 U. S. C. § 46 (c); because of their different nature, we cannot assume the grant of authority to do one includes authority to do the other.

The question certified to us is therefore answered in the negative.

Mr. Justice Powell took no part in the consideration or decision of this case.

       The Court of Appeals for the Fourth Circuit is composed of seven judges in regular active service, 28 U. S. C. § 44, and two judges who have retired from that service but remain available for duties as designated and assigned, known as senior judges, 28 U. S. C. §294 (b). In Moody v. Albemarle Paper Co., both of those senior judges were designated members of the three-judge division which originally decided that appeal, see 474 F. 2d 134; in Williams v. Albemarle City Board of Education, one of the senior judges was so designated, see 485 F. 2d 232; 28 U. S. C. § 294 (c).

       Federal Rule App. Proc. 35 provides in part:
      "(a) When Hearing or Rehearing in Banc Will Be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.
      “(b) Suggestion of a Party for Hearing or Rehearing in Banc. A party may suggest the appropriateness of a hearing or rehearing in banc. The clerk shall transmit any such suggestion to the judges of the court who are in regular active service but a vote will not be taken to determine whether the cause shall be heard or reheard in banc unless a judge in regular active service or a judge who was a member of the panel that rendered a decision sought to be reheard requests a vote on such a suggestion made by a party.”

       The machinery devised by the Ninth Circuit in that case was one which governed the initiation of the polling of the court to determine whether it should hear or rehear a case in banc. Although there was some uncertainty whether indeed the Ninth Circuit had provided such machinery, 345 U. S. 247, 263, its nature was to delegate to the three-judge division first hearing the case the power to initiate a poll of the court. Id., at 259. Two of the judges who were members of the division in that case were district judges. Id., at 263. This machinery was similar in kind to that now set forth in Fed. Rule App. Proc. 35 (b), supra, n. 2, by which a vote to hear or rehear a case in banc will not be taken unless such a vote is requested by a judge in regular active service, or a judge who was a member of the division that rendered a decision sought to be reheard.

       The only other courts of appeals which have discussed the issue have ruled similarly. Zahn v. International Paper Co., 469 F. 2d 1033, 1040-1042 (CA2 1972) (statements and dissent upon denial of rehearing in banc); Allen v. Johnson, 391 F. 2d 527, 532 (CA5 1968) (in banc).


author: Mr. Chief Justice Burger Mr. Justice Rehnquist,

text:
    JIMENEZ et al. v. WEINBERGER, SECRETARY OF HEALTH, EDUCATION, AND WELFARE
    No. 72-6609.
    Argued March 18, 1974
    Decided June 19, 1974

      Burger, C. J., delivered the opinion of the Court, in which Douglas, BreNNAN, Stewart, White, Marshall, BlacicmuN, and Powell, JJ., joined. RehNQUIst, J., filed a dissenting opinion, post, p. 638.

      Jane G. Stevens argued the cause and filed briefs for appellants.

      Danny J. Boggs argued the cause for appellee. With him on the brief were Solicitor General Bork, Acting A&-sistant Attorney General Jaffe, and William Kanter.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

A three-judge District Court in the Northern District of Illinois upheld the constitutionality of a provision of the Social Security Act which provides that certain illegitimate children, who cannot qualify for benefits under any other provision of the Act, may obtain benefits if, but only if, the disabled wage-earner parent is shown to have contributed to the child’s support or to have lived with him prior to the parent’s disability. The District Court held that the statute’s classification is rationally related to the legitimate governmental interest of avoiding spurious claims. Jimenez v. Richardson, 353 F. Supp. 1356, 1361 (1973). We noted probable jurisdiction. 414 U.S. 1061.

The relevant facts are not in dispute. Ramon Jimenez, a wage earner covered under the Social Security Act, became disabled in April 1963, and became entitled to disability benefits in October 1963. Some years prior to that time, the claimant separated from his wife and began living with Elizabeth Herñandez, whom he never married. Three children were born to them, Magdalena, born August 13, 1963, Eugenio, born January 18, 1965, and Alicia, born February 24, 1968. These children have lived in Illinois with claimant all their lives; he has formally acknowledged them to be his children, has supported and cared for them since their birth, and has been their sole caretaker since their mother left the household late in 1968. Since the parents never married, these children are classified as illegitimate under Illinois law and are unable to inherit from their father because they are nonlegitimated illegitimate children. Ill. Ann. Stat., c. 3, § 12 (Supp. 1974).

On August 21,1968, Ramon Jimenez, as the father, filed an application for child’s insurance benefits on behalf of these three children. Magdalena was found to be entitled to child’s insurance benefits under the Social Security Act, and no issue is presented with respect to her claim. The claims of appellants, Eugenio and Alicia, were denied, however, on the ground that they did not meet the requirements of 42 U. S. C. § 416 (h) (3), since neither child’s paternity had been acknowledged or affirmed through evidence of domicile and support before the onset of their father’s disability. In all other respects Eugenio and Alicia are eligible to receive child’s insurance benefits, and their applications were denied solely because they are proscribed illegitimate children who were not dependent on Jimenez at the time of the onset of his disability.

Appellants urge that the contested Social Security provision is based upon the so-called “suspect classification” of illegitimacy. Like race and national origin, they argue, illegitimacy is a characteristic determined solely by the accident of birth; it is a condition beyond the control of the children, and it is a status that subjects the children to a stigma of inferiority and a badge of opprobrium. We need not reach appellants’ argument, however, because in the context of this case it is enough that we note, as we did in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972):

“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where . . . the classification is justified by no legitimate state interest, compelling or otherwise.” Id., at 175-176.

Conversely, the Secretary urges us to uphold this statutory scheme on the ground that the case is controlled by the Court’s recent ruling in Dandridge v. Williams, 397 U. S. 471 (1970), where we noted:

“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some 'reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U. S. 420, 426.” Id., at 485.

However, Dandridge involved an equal protection attack upon Maryland’s Aid to Families with Dependent Children program which provided aid in accordance with the family’s standard of need, but limited the maximum grant to $250 per family, regardless of size, thereby reducing the per capita allowance for children of large families. We noted that the AFDC welfare program is a “ ‘scheme of cooperative federalism’ ” and that the “starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.” Id., at 478. This special deference to Maryland’s statutory approach was necessary because, “[g]iven Maryland’s finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family.” Id., at 479. Here, by contrast, there is no evidence supporting the contention that to allow illegit-imates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act. On the contrary, the Secretary has persistently maintained that the purpose of the contested statutory scheme is to provide support for dependents of a wage earner who has lost his earning power, and that the provisions excluding some afterborn illegitimates from recovery are designed only to prevent spurious claims and ensure that only those actually entitled to benefit receive payments. Accepting this view of the relevant provisions of the Act, we cannot conclude that the purpose of the statutory exclusion of some afterborn illegitimates is to achieve a necessary allocation of finite resources and, to that extent, Dandridge is distinguishable and not controlling.

As we have noted, the primary purpose of the contested Social Security scheme is to provide support for dependents of a disabled wage earner. The Secretary maintains that the Act denies benefits to afterborn illegit-imates who cannot inherit or whose illegitimacy is not solely because of a formal, non obvious defect in their parents’ wedding ceremony, or who are not legitimated, because it is “likely” that these illegitimates, as a class, will not possess the requisite economic dependency on the wage earner which would entitle them to recovery under the Act and because eligibility for such benefits to those illegitimates would open the door to spurious claims. Under this view the Act’s purpose would be to replace only that support enjoyed prior to the onset of disability; no child would be eligible to receive benefits unless the child had experienced actual support from the wage earner prior to the disability, and no child born after the onset of the wage earner’s disability would be allowed to recover. We do not read the statute as supporting that view of its purpose. Under the statute it is clear that illegitimate children born after the wage earner becomes disabled qualify for benefits if state law permits them to inherit from the wage earner, § 416 (h) (2) (A); or if their illegitimacy results solely from formal, nonobvious defects in their parents’ ceremonial marriage, § 416 (h) (2) (B); or if they are legitimated in accordance with state law, § 402 (d)(3)(A). Similarly, legitimate children born after their wage-earning parent has become disabled and legitimate children born before the onset of disability are entitled to benefits regardless of whether they were living with or being supported by the disabled parent at the onset of the disability, §§ 402 (d) (1) and (3).

In each of the examples just mentioned, the child is by statute “deemed dependent” upon the parent by virtue of his status and no dependency or paternity need be shown for the child to qualify for benefits. However, nonlegitimated illegitimates in appellants’ position, who cannot inherit under state law and whose illegitimacy does not derive solely from a defect in their parents’ wedding ceremony, are denied a parallel right to the dependency presumption under the Act. Their dilemma is compounded by the fact that the statute denies them any opportunity to prove dependency in order to establish their “claim” to support and, hence, their right to eligibility. § 416 (h) (3) (B). The Secretary maintains that this absolute bar to disability benefits is necessary to prevent spurious claims because “[t]o the unscrupulous person, all that prevents him from realizing . . . gain is the mere formality of a spurious acknowledgment of paternity or a collusive paternity suit with the mother of an illegitimate child who is herself desirous or in need of the additional cash.” Jimenez v. Richardson, 353 F. Supp., at 1361.

From what has been outlined it emerges that afterborn illegitimate children are divided into two subclassifica-tions under this statute. One subclass is made up of those (a) who can inherit under state intestacy laws, or (b) who are legitimated under state law, or (c) who are illegitimate only because of some formal defect in their parents’ ceremonial marriage. These children are deemed entitled to receive benefits under the Act without any showing that they are in fact dependent upon their disabled parent. The second subclassification of afterborn illegitimate children includes those who are conclusively denied benefits because they do not fall within one of the foregoing categories and are not entitled to receive insurance benefits under any other provision of the Act.

We recognize that the prevention of spurious claims is a legitimate governmental interest and that dependency of illegitimates in appellants’ subclass, as defined under the federal statute, has not been legally established even though, as here, paternity has been acknowledged. As we have noted, the Secretary maintains that the possibility that evidence of parentage or support may be fabricated is greater when the child is not born until after the wage earner has become entitled to benefits. It does not follow, however, that the blanket and conclusive exclusion of appellants’ subclass of illegitimates is reasonably related to the prevention of spurious claims. Assuming that the appellants are in fact dependent on the claimant, it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits, and it would discriminate between the two subclasses of afterborn illegit-imates without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses.

The Secretary does not contend that it is necessarily or universally true that all illegitimates in appellants’ subclass would be unable to establish their dependency and eligibility under the Act if the statute gave them an opportunity to do so. Nor does he suggest a basis for the assumption that all illegitimates who are statutorily deemed entitled to benefits under the Act are in fact dependent upon their disabled parent. Indeed, as we have noted, those illegitimates statutorily deemed dependent are entitled to benefits regardless of whether they were living in, or had ever lived in, a dependent family setting with their disabled parent. Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act’s definition of these two subclasses of illegitimates is “over-inclusive” in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is “underinclusive” in that it conclusively excludes some illegitimates in appellants’ subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment. Schneider v. Rusk, 377 U. S. 163, 168 (1964); Bolling v. Sharpe, 347 U. S. 497, 499 (1954).

In the District Court the Secretary, relying on the validity of the statutory exclusion, did not undertake to challenge the assertion that appellants are the children of the claimant, that they lived with the claimant all their lives, that he has formally acknowledged them to be his children, and that he has supported and cared for them since their birth. Accordingly, the judgment is vacated and the case is remanded to provide appellants an opportunity, consistent with this opinion, to establish their claim to eligibility as “children” of the claimant under the Social Security Act.

Vacated and remanded.

Mr. Justice Rehnquist,

dissenting.

I frankly find the Court’s opinion in this case a perplexing three-legged stool. The holding is clearly founded in notions of equal protection, see ante, at 637, and the Court speaks specifically of improper “discrimination.” Yet the opinion has strong due process overtones as well, at times appearing to pay homage to the still novel, and I think unsupportable, theory that “irrebuttable presumptions” violate due process. At other times the opinion seems to suggest that the real problem in this case is the Government’s failure to build an adequate evidentiary record in support of the challenged legislation. The result is a rather impressionistic determination that Congress’ efforts to cope with spurious claims of entitlement, while preserving maximum benefits for those persons most likely to be deserving, are simply not satisfactory to the members of this Court. I agree with neither the Court’s approach nor its decision.

The Court’s equal protection analysis is perhaps most difficult to understand. The Court apparently finds no need to resolve the question of whether illegitimacy constitutes a “suspect classification,” noting instead that “ 'the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where . . . the classification is justified by no legitimate state interest, compelling or otherwise.’ [Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 176 (1972).]” Ante, at 632. (Emphasis added.) This statement might be thought to set the stage for a decision striking down the legislation on the basis of discrimination between legitimates and illegitimates. But the Court then leaves that issue, finding instead that the statute is unconstitutional because it “discriminate [s] between the two subclasses of afterborn illegitimates without any basis for the distinction . . . Ante, at 636. (Emphasis added.) Whatever may be the rationale for giving some form of stricter scrutiny to classifications between legitimates and illegiti-mates, that rationale simply vanishes when the alleged discrimination is between classes of illegitimates. Such classifications should instead be evaluated according to the traditional principle set forth in Dandridge v. Williams, 397 U. S. 471 (1970): “If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Id., at 485. (Citation omitted.)

The Court’s rejection of this principle strongly smacks of due process rather than equal protection concepts. The Court states that “[a]ssuming . . . appellants are in fact dependent on the claimant, it would not serve the purpose of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits,” ante, at 636 (emphasis added), and indicates that the real problem with the legislation is that it is both “overinclusive” and “underinclusive.” According to the Court, the legislation cannot stand because “some children” entitled to benefits “are not dependent on their disabled parent” and because “some illegitimates” who do not get benefits “are, in fact, dependent upon their disabled parent.” Ante, at 637. In my view this is simply an attack on “irrebuttable presumptions” in another guise. See Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974). The very process of making legislative decisions to govern society as a whole means that some individuals will be treated less favorably than other individuals who fall within a different legislative classification. As The Chief Justice stated only last Term in Vlandis v. Kline, 412 U. S. 441, 462 (1973) (dissenting opinion): “[Laterally thousands of state statutes create classifications permanent in duration, which are less than perfect, as all legislative classifications are, and might be improved on by individualized determinations . . . This Court should not invalidate such classifications simply out of a preference for different classifications or because an unworkable system of individualized consideration would theoretically be more perfect.

There are also hints in the opinion that the Government failed to build an adequate evidentiary record in support of the challenged classifications. Thus the Court distinguishes Dandridge v. Williams, supra, a case in which the Court respected the State's allocation of limited resources, by saying: “Here, by contrast, there is no evidence supporting the contention that to allow illegiti-mates in the classification of appellants to receive benefits would significantly impair the federal Social Security trust fund and necessitate a reduction in the scope of persons benefited by the Act.” Ante, at 633. (Emphasis added.) I should think it obvious that any increase in the number of eligible recipients would serve to additionally deplete a fixed fund, but I find even stranger the notion that the Government must present evidence to justify each and every classification that a legislature chooses to make. If I read the Court’s opinion correctly, it would seem to require, for example, that the Government compile evidence to support Congress’ determination that Social Security benefits begin at a specified age, perhaps even requiring statistics to show that need is greater (in all cases?) at that age than at lesser ages. This proposition is certainly far removed from traditional principles of deference to legislative judgment. As we stated in McGowan v. Maryland, 366 U. S. 420, 426 (1961): “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” There is nothing in that language that suggests to me that courtrooms should become forums for a second round of legislative hearings whenever a legislative determination is later challenged.

Since I believe that the District Court correctly concluded that the classifications at issue rest upon a rational basis, I dissent.

       42 U. S. C. §416 (h)(3).

       The contested Social Security scheme provides, in essence, that legitimate or legitimated children (42 U. S. C. § 402 (d) (3)), illegitimate children who can inherit their parent’s personal property under the intestacy laws of the State of the insured’s domicile (42 U. S. C. § 416 (h) (2) (A)), and those children who cannot inherit only because their parents’ ceremonial marriage was invalid for nonobvious defects (42 U. S. C. § 416 (h) (2) (B)), are entitled to receive benefits without any further showing of parental support. However, illegitimate children such as Eugenio and Alicia who were not living with or being supported by the applicant at the time the claimant’s period of disabilhy began, and who do not fall into one of the foregoing categories, are not entitled to receive any benefits. 42 U. S. C. § 416 (b)(3).

       See House-Senate Conference Committee Report on 1965 Amendments to Social Security Act, 111 Cong. Rec. 18387 (1965); Report of the U. S. Advisory Council on Social Security, the Status of the Social Security Program and Recommendations for its Improvement 67 (1965).