William J. Brennan, Jr.

“ To request that somebody do something is to express a desire that he do it, even though he may not generally be disciplined or sanctioned if he declines. Of course, somebody who frequently refuses another person's requests might not win that person's favor. A soldier who regularly fails to fulfill his superior's requests might not rise in the ranks as rapidly as would someone who was more compliant. But somebody who refuses a request, as the word is ordinarily used, may not be penalized formally for doing so, as a soldier who disobeyed orders might be court-martialed. ”

“ Nor do respondents' premises compel their conclusion. Section 1915 (d) plays a useful role in the statutory scheme if it informs lawyers that the court's requests to provide legal assistance are appropriate requests, hence not to be ignored or disregarded in the mistaken belief that they are improper, like a judge's request to cut short cross-examination so that he can go fishing. Section 1915 (d) may meaningfully be read to legitimize a court's request to represent a poor litigant and therefore to confront a lawyer with an important ethical decision ”

“ Contrary to respondents' assertion, Brief for Respondent 7-9, construing § 1915 (d) to allow courts to ask but not compel lawyers to represent indigent litigants does not render § 1915 (d) a nullity. Respondents contend that statutory authorization is unnecessary for a court simply to ask an attorney to represent someone; § 1915 (d) would be superfluous if it did no more than hat, and thus it must be read to confer coercive power upon the federal courts. Respondents' major premise, however, is too strong. Statutory provisions may simply codify existing rights or powers. ”

“ Although respondents and their amici urge us to affirm the Court of Appeals' judgment on the ground that the federal courts do have such authority, the District Court did not invoke its inherent power in its opinion below, and the Court of Appeals did not offer this ground for denying Mallard's application for a writ of mandamus. We therefore leave that issue for another day. We hold only that § 1915 (d) does not authorize the federal courts to make coercive appointments of counsel. ”

“ Courts at the time evidently believed that attorneys were free to decline a judge's request to represent an indigent plaintiff under § 1915 (d) .↑ Although § 1915 (d) now pertains to "the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein," 28 U.S.C. § 1915 (a) , as originally drafted it apparently applied only to suits commenced by an indigent person. Act of July 20, 1892, ch. 209, § 1, 27 Stat. 252. Since a private individual may not institute a criminal prosecution, the scope of § 1915 (d) was limited to persons bringing civil suits. ”

“ The House Report refers exclusively to litigation over property. See H.R.Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892) . And the floor debate in the House speaks only of poor persons suing as plaintiffs. See 23 Cong.Rec. 5199 (1892) .↑ We do not decide today whether, or under what conditions, 18 U.S.C. § 3005 or any other federal statute providing for the "assignment" or "appointment" of counsel authorizes federal courts to compel an unwilling attorney to render service. ”

“ Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953) , or conduct amounting to "usurpation of [the judicial] power," De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 1133, 89 L.Ed. 1566 (1945) , to be entitled to issuance of the writ. To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, see, e.g., Kerr, supra, 426 U.S., at 403, 96 S.Ct., at 2124; Allied Chemical Corp. ”

“ Each lawyer was eligibl to be chosen every third year, making her odds of being selected roughly 1 in 9 in those years. App. to Brief for Respondents 1-5.↑ Compare, e.g., Caruth v. Pinkney, 683 F.2d 1044, 1049 (CA7 1982) (§ 1915 (d) does not authorize compulsory appointments) , cert. ”