I dissent. The Court today retroactively applies the order in People v Bass1 and the court rule announced May 6, 1998, although there was no direct finding in Bass that any substantive right of a defendant, constitutional, statutory, or otherwise, had been violated.
Other than an ambiguous reference in Bass to People v Mitchell, 454 Mich 145, 154; 560 NW2d 600 (1997), where we acknowledged in dicta the existence of a “prophylactic approach . . . applied to cases in which the court or the state directly interferes with the attorney-client relationship by preventing counsel from rendering assistance,” the Court offered no explanation for its conclusion in Bass, nor does it do so today. As I observed in dissent to the Court’s order in Bass, the Court’s reference to Mitchell would not support a finding of ineffective assis*83tance of counsel, had it been made. In Mitchell, we recognized that “prejudice is presumed” in cases where the “ ‘circumstances . . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified’ . . . .” Id. at 154-155.
A categorical presumption of ineffective assistance involves egregious official activity that “ ‘impair[s] the accused’s enjoyment of the Sixth Amendment guarantee by disabling his counsel from fully assisting and representing him.’ ” Id. at 154, n 11. The former rule did not disable counsel by erecting a bar to a task crucial to effective advocacy; it merely created a minimal procedural hurdle to establish entitlement to the voir dire transcript.
The cases weakly referenced by the majority as authority for summary action in Bass involved court orders or statutes that absolutely prevented counsel from conferring with their clients during trial recesses, from eliciting testimony from the defendant, or from presenting a closing argument on the defendant’s behalf. Id. These cases have nothing to do with implementing a minimal procedural burden to justify an expenditure of public funds. They involve absolute prohibitions on conduct critical to the defense. Thus, the court’s action in Bass and in its holding today is contrary to the Supreme Court’s holding in United States v Cronic, 466 US 648, 667; 104 S Ct 2039; 80 L Ed 2d 657 (1984), and to our own decision in Mitchell, supra, in which we rejected extension of the categorical approach where “the claim is that counsel’s preparation was inadequate.” Id. at 154, n 11. The categorical approach is inapposite unless there has been action which creates “a structural defect which defies *84harmless error analysis and requires automatic reversal.” Jones v Vacco, 126 F3d 408, 416 (CA 2, 1997). That is not the case here.2
The fact that the majority did not find a violation of a substantive right in Bass is attributable to the fact that there is no precedent or legal analysis that would support a holding that an indigent appellant is entitled to a transcript of voir dire at public expense on appeal absent a showing of good cause.3 Schwander v Blackburn, 750 F2d 494, 497 (CA 5, 1985); see also Judge Posner’s analogous reasoning in the context of deportation proceedings in Ortiz-Salas v Immigration & Naturalization Service, 992 F2d 105, 106-107 (CA 7, 1993). As the United States Supreme Court long ago explained in Draper v Washington, 372 US 487, 495; 83 S Ct 774; 9 L Ed 2d 899 (1963):
[P]art or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances.[4]
*85Courts have consistently held that in order for a defendant to demonstrate that a state’s failure to furnish a voir dire transcript (or even a complete trial transcript) constitutes an unconstitutional denial of a fair and effective appeal, the defendant must demonstrate the prejudicial effect of the unfurnished transcripts. See Moore v Carlton, 74 F3d 689, 693 (CA 6, 1996); Bransford v Brown, 806 F2d 83 (CA 6, 1986); White v Florida Dep’t of Corrections, 939 F2d 912, 914, n 4 (CA 11, 1991); Mullen v Blackburn, 808 F2d 1143, 1146 (CA 5, 1987). There was no showing of prejudice in Bass, even after defendant received the transcript, nor is there any such showing here. In fact, in this case, counsel conceded that he could not demonstrate good cause for transcription of the voir dire. On these facts, “even if [defense] counsel could have obtained the transcripts, we have before us not even a modicum of evidence that the transcripts would have revealed reversible error.” Bransford, 806 F2d 87.
Notwithstanding the fact that no substantive right has been violated, the Court today not only summarily confirms the holding of Bass that local funding units must provide voir dire transcripts to every appellant, irrespective of good cause, but also holds that taxpayers must now retroactively shoulder this burden. One premise underlying retroactivity is that the law declared in judicial decisions has always been the law. Linkletter v Walker, 381 US 618, 622-623; 85 S Ct 1731; 14 L Ed 2d 601 (1965), citing 1 Blackstone, Commentaries (15th ed), p 69. A second premise, *86originating with Justice Harlan, is that where there has been a finding of a violation of the constitution, a court that fails to apply the finding to cases pending on direct review is acting legislatively and not judicially. Desist v United States, 394 US 244, 259; 89 S Ct 1030; 22 L Ed 2d 248 (1969) (Harlan, J., dissenting).
[Wjhether a new constitutional rule is to be given retroactive or simply prospective effect must be determined upon principles that comport with the judicial function, and not upon considerations that are appropriate enough for a legislative body. [Mackey v United States, 401 US 667, 677; 91 S Ct 1171; 28 L Ed 2d 388 (1971) (Harlan, J., dissenting in part).]
A fortiori, the first premise does not apply where, as here, there has been no finding of a violation of the law or defendant’s constitutional rights. Justice Harlan’s rationale is likewise inapposite. Indeed, retroactive application of Bass demonstrates precisely the vice Justice Harlan sought to correct. If there is no violation of a substantive right, the Court’s decision in Bass is a legislative and not a judicial activity. It follows that retroactive application of that policy conclusion likewise cannot be other than legislative activity. As Justice Harlan himself stated:
[I]t is the task of this Court, like that of any other, to do justice to each litigant on the merits of his own case. It is only if our decisions can be justified in terms of this fundamental premise that they may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature. [Desist, 394 US 259 (emphasis added).]
Without a statement of the reasons in law why a certain result is required, the Court acts without *87authority, Const 1963, art 6, § 6, and its actions may not properly be considered the legitimate products of a court of law. The order in Bass and today’s action also imposes “necessary increased costs” on local funding units, Const 1963, art 9, § 29 (the Headlee Amendment), further demonstrating the extent to which the Court strays from its constitutional responsibilities.5
Even more problematically for its effect on the system, the opinion extends the newly created right to a voir dire transcript to those defendants who “preserved” the issue as of May 6, 1998, without clarifying for the circuit court judges and the Court of Appeals what constitutes timely request and preservation. Despite the fact that there are myriad formulations regarding retroactivity, the opinion declines to reference a formula that could be looked to for guidance. Instead, the Court finds that defendant Neal is entitled to retroactive application because he preserved the issue. The opinion notes seriatim that defendant “ordered the transcript before the effective date of the 1994 rule change, and then protested in writing when the jury voir dire was omitted. He subsequently argued the point in a motion for new trial in circuit court, and raised the issue in briefs to the Court of Appeals and this Court.” Ante at 81-82. The Court does not clarify whether any one, some, or all of such actions will constitute preservation. It can be safely hypothesized that any one might be held to do so, and *88that confusion will be the order of the day until the system digests the permutations of the decision.6
While implicitly conceding that defendant has sustained no substantive harms, the Court imposes a regimen of retroactivity that, in increasing the burden on the Court of Appeals, will delay the disposition of both civil and criminal cases. Moreover, without suggesting a distinction between applications for leave to appeal and claims of appeal, the opinion remands to the trial court to order preparation of a voir dire transcript and then extends to defendants the right to file a brief on issues that may arise from the voir dire “within twenty-eight days after” the defendant receives a copy of the transcript. Defendants who have received the voir dire before May 6, 1998, will also be allowed to file a supplemental brief if they “preserved” the issue. That the majority acts without oral argument, and without any examination of the burdens created by “limited” retroactivity when the Court of Appeals has by herculean effort so recently eliminated its backlog, illustrates that the consequences of today’s decision are potentially even more unsettling than the order in People v Bass, supra.
I initially disagreed with the change in the court rule because the change would impose increased costs on local funding units. The Court’s action today and in Bass itself eschews any balancing of the mag*89nitude of the risk to the indigent defendant or the adversary process, consideration of the utility of the minimal good-cause requirement, the governmental interest in economy, the timely production of transcripts on appeal, and the burden on trial and appellate courts.
The critical question left unanswered by the order in Bass and the opinion today is to what end and at what cost7 does the Court impose its legislative will in the garb of legal decision making? The rule of law dictates that the first commandment of any court must be that it act only within its authority with respect to the question presented. The legitimacy of judicial decision making requires that this Court do no more and no less. Because, both Bass and Neal violate this fundamental precept of constitutional government, I dissent.
Weaver, J., concurred with Boyle, J.457 Mich 866 (1998).
The Court’s reference to MitcheU could also have been interpreted as a reference to “the rare cases in which the circumstances are such that ‘although counsel is available to assist the accused . . . the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate ....’” Id. at 155. However, a procedural burden as a condition on publicly subsidized transcript preparation is not a “circumstance [] ... of such ‘magnitude’ . . . [that] an ‘actual breakdown of the adversarial process’ ” occurs by virtue of its existence. Id.
The defendant in the instant case did not challenge the array, exhaust his challenges, or attempt to show good cause. Defendant does not assert by affidavit that he attempted to obtain information from trial counsel regarding voir dire.
The equality principle as more recently explicated by the Supreme Court puts forth a three-factor test with the common theme of meaningful access to justice and an adequate opportunity to present claims, Ake v Oklahoma, 470 US 68; 105 S Ct 1087; 84 L Ed 2d 53 (1985), in other words, a classic balancing approach. See also People v Loyer, 169 Mich App 105, *85126; 425 NW2d 714 (1988) (T. K Boyle, J., concurring in part and dissenting in part).
As I noted in my dissent in Bass, art 9, § 29 suggests that this Court, rather than local funding units and taxpayers, should bear the necessary increased costs incident to automatic provision of voir dire transcripts.
Because the order in Bass and the opinion here may be claimed to be a change in law, it can also be anticipated that trial courts will be called upon to resolve motions for relief of judgment posited on requests for voir dire. MCR 6.502. The possibility highlights another problem eschewed by the majority: what to do when it is no longer possible to prepare a voir dire? Query, whether a court would attempt to settle the record, MCR 7.210(B)(2), how a record could be settled if no one remembers a problem arising, or whether error will be presumed if it cannot be.
Of the thousands of cases reviewed by this Court before adoption of the now replaced rule, error in voir dire occurred in statistically infinitesimal instances; in the overwhelming mass of cases error in voir dire did not even colorably appear.