Academic journal article
By Smith, Kevin H.
Albany Law Review , Vol. 63, No. 2
"I'm going to take this case all the way to the Supreme Court!" Each Term,(1) approximately two thousand civil(2) litigants, disappointed by an adverse decision in a lower court, make good on this refrain by paying the required fee,(3) and filing a petition for a writ of certiorari(4) with the United States Supreme Court. Many of these litigants are disappointed further when the Court exercises its discretion and declines to review their case.(5) Each Term, only about 5% of the paid petitions for certiorari filed by civil litigants are granted plenary review, that is, a full briefing, an oral argument, and a full written decision on the merits.(6)
Among those litigants who file paid civil petitions for certiorari each Term are several hundred pro se petitioners,(7) men and women who proceed, by right,(8) to represent themselves, armed in most cases with more determination than legal expertise. The Court almost invariably denies their petitions. None of the sixty-five pro se petitions in a sample of 273 randomly selected paid civil petitions for certiorari raising an equal protection issue disposed of during the Court's 1981 through 1987 Terms was granted.(9) Furthermore, data indicate that the Court granted only one, or a mere .3%, of the approximately three hundred paid civil petitions for certiorari filed pro se which were disposed of during the Court's 1994 Term.(10) Scholars who have studied the Court's plenary docket have noted the almost total absence of pro se civil litigants among those litigants whose paid petitions are granted.(11) What are we to make of such striking data?
On the one hand, these data raise a profound concern that the Supreme Court is denying pro se petitioners their last opportunity for legal(12) and political(13) justice in a system in which justice often is expensive.(14) Indeed, the essentially complete denial of pro se petitions for certiorari presents a prima facie case of bias toward the poor(15) and promotes an appropriate apprehension that the Justices are failing to `"administer justice without respect to persons, and do equal right to the poor and to the rich,'" as required by their oath of office.(16)
On the other hand, it may be argued that "[u]nrepresented litigants may clutter up cases with rambling, illogical reams of what purport to be pleadings, motions, and briefs. They may seek out courtrooms as forums to vent strongly held but legally unfounded social and political theories or as battlegrounds to satisfy private, legally unredressable vendettas."(17) From this perspective, the Supreme Court's denial of pro se petitions may represent appropriate action to promote the efficient operation of the judicial system.
Five important--and related--descriptive and normative questions are raised by the Supreme Court's essentially complete denial of pro se paid civil petitions for certiorari: What functions does the Supreme Court play in the American legal and political systems? Are the attributes of petitions filed by pro se litigants different in any material respect from petitions filed by non-pro se litigants? Are the attributes of cases in which pro se petitions are filed different in any material respect from the attributes of cases in which non-pro se litigants file petitions? Given the Supreme Court's functions within the American legal and political systems, and the characteristics of pro se petitions and their underlying cases, is there any legitimate reason for pro se petitions to be denied at a much higher rate than non-pro se petitions? Does the refusal to grant pro se petitions deny litigants who cannot afford attorneys equal justice before the Court or justice within the larger American political system?
This Article addresses these questions by analyzing a data set comprising 273 randomly selected paid civil cases involving petitions for certiorari containing equal protection issues disposed of during the Court's 1981 through 1987 Terms. …