It is, of course, not possible to explain the reasons supporting every order denying a petition for a writ of certiorari. An occasional explanation, however, may allay the possible concern that this Court is not faithfully performing its responsibilities. Cf. Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 917-918, 70 S. Ct. 252, 254-255, 94 L. Ed. 562 (1950) (opinion of Frankfurter, J., respecting the denial of the petition for writ of certiorari). In this case petitioners request the Court to resolve the conflict among the Circuits on the question whether constitutional claims not actually litigated in earlier state proceedings are barred in a subsequent § 1983 action. The general phrasing of the issue in the petition reflects the wholly unrealistic assumption that neither the character of the federal constitutional claim1 nor the character of the earlier state proceeding2 can affect its answer.

The case that gives rise to this petition does not squarely conflict with any previous decision. The Sixth Circuit wrote:

We do not hold that the application of the principles of res judicata and collateral estoppel is mandatory in every case. They are an expression of the policy of federal courts preferring finality, i.e., that litigation at some time must become final. In the face of more important federal policies, however, the preference for finality might be outweighed by more compelling considerations. We do not foreclose the possibility that certain s 1983 claims might not be barred by res judicata under proper circumstances. We hold only that the facts of this case do not present a proper situation in which to find an exception to the principles of res judicata.

This case, as the Court of Appeals recognized, arises out of a dispute over termination of parental rights, a domestic relations matter in which "the importance of finality is compelling." The record strongly suggests that prolongation of this litigation might have a serious adverse effect on the emotional and physical health of the child. See generally Brief of Guardian Ad Litem in Opposition to a Writ of Certiorari. Nothing in the petition indicates that the child's interests would be served by this Court's intervention in this family law matter. There does not appear to be any conflict among the Circuits regarding the application of res judicata in challenges to state decisions terminating parental rights. See Robbins v. District Court, 592 F.2d 1015 (CA8 1979) (res judicata bars § 1983 action challenging parental rights termination on constitutional grounds not raised in state court proceedings). In my judgment it would be an abuse of our discretion to use this case as a vehicle for addressing the somewhat abstract question that is advanced by counsel for the petitioners.

In this case brought under 42 U.S.C. § 1983 the Sixth Circuit held that res judicata principles barred the petitioner from presenting a constitutional claim because she had failed to present the claim in previous state litigation. The issue of whether constitutional claims not actually litigated in earlier state proceedings are barred in a subsequent federal suit is of considerable importance to § 1983 litigants and has divided the federal courts of appeal. The First, Fifth, Eighth, Ninth, and Tenth Circuits, and now the Sixth Circuit, have held that a § 1983 claimant is precluded by res judicata from relitigating not only the issues which were actually decided in the state proceeding, but also the issues which he might have presented. See Lovely v. Laliberte, 498 F.2d 1261 (CA 1), cert. denied, 419 U.S. 1038, 95 S. Ct. 526, 42 L. Ed. 2d 316 (1974); Jennings v. Caddo Parish School Bd., 531 F.2d 1331 (CA 5 1976); Robbins v. Dist. Court, 592 F.2d 1015 (CA 8 1979); Scoggin v. Schrunk, 522 F.2d 436 (CA 9 1975), cert. denied, 423 U.S. 1066, 96 S. Ct. 807, 46 L. Ed. 2d 657 (1976); Spence v. Latting, 512 F.2d 93 (CA 10), cert. denied, 423 U.S. 896, 96 S. Ct. 198, 46 L. Ed. 2d 129 (1975). The Second and Third Circuits hold that a litigant is not precluded from asserting later such claims in federal court. See Lombard v. Board of Ed. of New York City, 502 F.2d 631 (CA 2 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975); New Jersey Ed. Ass'n v. Burke, 579 F.2d 764 (CA 3), cert. denied, 439 U.S. 894, 99 S. Ct. 252, 58 L. Ed. 2d 239 (1978). This conflict-which has been recognized by petitioner, by respondent, by the court below, and even by this Court, Allen v. McCurry, 449 U.S. 90, 97, n. 10, 101 S. Ct. 411, 416, n. 10, 66 L. Ed. 2d 308 (1980)-should now be resolved. I would grant certiorari.