Academic journal article Northwestern University Law Review

Pay Up or Shut Up: The Supreme Court's Prospective Denial of in Forma Pauperis Petitions

Academic journal article Northwestern University Law Review

Pay Up or Shut Up: The Supreme Court's Prospective Denial of in Forma Pauperis Petitions

Article excerpt

"Something can be heard in the hallways outside the nation's courtrooms that has not been heard for a long while-the sounds of the courtroom doors swinging closed."1


The United States Supreme Court has exhausted its patience for the claims of a number of in forma pauperis ("IFP") petitioners.2 In short, IFP-Latin for "in the manner of a pauper"3-statutes and court rules allow indigent litigants to proceed without paying the court's filing fees and costs.4 Accordingly, the Court has directed its Clerk to no longer accept petitions in non-criminal cases from certain IFP petitioners unless they pay the Court's docket fee.5 In the usual case, to warrant receipt of this treatment, the litigant has repeatedly filed petitions and appeals with the Court that the Court has deemed frivolous.6 The Court cites the drain on its limited resources as ground for resorting to this action.7 The majority reasons that it is more efficient to prospectively exclude these litigants from the Court's docket than to deny review of their petitions on a case-by-case basis.8 The majority9 places its authority for enacting this sweeping prohibition on its own procedural Rule 39.8,10 which states that "[i]f satisfied that a petition for a writ of certiorari, jurisdictional statement, or petition for an extraordinary writ is frivolous or malicious, the Court may deny leave to proceed in forma pauperis."11

Support for this policy, however, has never been unanimous among the Supreme Court Justices. For every litigant to whom it has been applied, Justices Stevens, Brennan, Marshall, and Blackmun have dissented (depending on the Court's membership at the time of the opinion).12 The Justices in dissent questioned whether the Court could and, equally as important, should refuse to accept these petitioners' suits.13 They opined that the Court should preserve the open door policy it had maintained since its inception.14

The validity of this prohibition against certain petitioners is of both theoretical and practical significance. In theoretical terms, the Court's use of its authority and unique position in the judicial system is called into question. As a practical matter, the Court's conduct raises concerns for those who want to seek redress from the Court, but who are unable to afford its fees. To be clear, this Comment does not argue that the Supreme Court should waste its scarce judicial resources hearing oral arguments in lawsuits that raise frivolous claims. Rather, this Comment questions the Court's use of its authority to deny cases that have not yet been presented to the Court and analyzes the negative message these prospective denials send to litigants and to the lower federal courts15 and state courts16 that are following the Supreme Court's lead by instituting similar prohibitions against the scores of litigants who have tired them as well. In this regard, this Comment argues that the Supreme Court does not currently possess the authority to implement this prohibition under its existing rules of procedure, and that, even if it does, it should not exercise such authority due to the strong public policy interests which weigh against it.

Part II explains the process of seeking leave to proceed IFP in the federal courts and in the Supreme Court. Part III discusses Supreme Court cases leading up to the Court's issuance of the prospective denial and subsequent amendment of Rule 39 to handle dismissal of frivolous IFP cases. Part IV examines the propriety of the Court's prospective denial and analyzes the constitutional and statutory authority for it as well as the public policy arguments in favor of and against it. Part V concludes that, although the Court possesses the ability to blacklist petitioners in this manner (in the sense that it exerts control over its own rules of procedure),17 the Court abuses its authority by doing so in light of the strong public policy arguments against it. It recommends that the Court reverse its course or, in the alternative, that Congress enact legislation to check this abuse of the Court's authority. …

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