The U.S. Supreme Court's in Forma Pauperis Docket: A Descriptive Analysis
Watson, Wendy L., Justice System Journal
The proportion of the U.S. Supreme Court's docket composed of unpaid or in forma pauperis petitions, petitions filed by litigants who cannot afford the Court's filing fee, has consistently outstripped the percentage of cases granted review that originate on the IFP docket. Scholars and jurists alike attach little significance to this apparent disparity because they tend to write, off categorically cases on the IFP docket as frivolous and unimportant. Yet given the large and growing number of IFP petitions filed with the Court, this class of cases requires some form of systematic consideration. This article compares a sample of the unpaid petitions for review filed with the U.S. Supreme Court from the 1976 through 1985 terms to a similar sample of paid petitions to determine whether and how the two dockets differ. Examination of the cases indicates that the IFP petitions are not categorically frivolous and unimportant and suggests, as a result, that these petitions require further consideration in the literature on the Supreme Court's agenda setting.
Empirical analysis of the United States Supreme Court's docket has, in the past, focused almost exclusively on the paid docket to the exclusion of the unpaid petitions, also called in forma pauperis, or IFP petitions-those petitions filed by litigants who assert that they are too indigent to pay the Court's filing fee (Caldeira and Wright, 1988, 1990; Teger and Kosinski, 1980). This is true despite the fact that, between 1948 and 1986, roughly half of the petitions filed with the Supreme Court were filed by indigent petitioners, and since 1986 the proportion of filings by indigent petitioners has skyrocketed. Indeed, during the 2004-05 Supreme Court Term, 7,496 petitions were filed with the Court, and 5,755 (nearly 77 percent) of those were IFP petitions (Bureau of National Affairs, 2005:3076).
Scholars justify the exclusion of IFP petitions from analysis on the assumption that these petitions are generally frivolous and unimportant (Tanenhaus et al., 1963; Segal and Spaeth, 1993:192). The categorical dismissal of IFP petitions by academicians reflects a prevailing bias within the legal community as a whole. Even Justice William Brennan, whose liberal ideological stance and activist perception of the Court's role likely would have rendered him particularly receptive to the petitions of indigent petitioners, considered the overwhelming majority of IFP petitions to be unworthy of full Court review (Brown v. Herald Co. (1983) (Brennan, J., dissenting)).
The perception that virtually all IFP petitions are without merit leads Court commentators to be rather nonchalant about the disproportionately small percentage of IFP petitions accepted for review. For example, this perception led Hellman (1985:961) to state that the Court's apparent disregard of the IFP petitions "is not surprising, nor is it the product of discrimination against the poor." Yet, as Chief Justice Harlan Fiske Stone observed, the IFP petitions "are mostly chaff, but occasionally we find some grains of wheat in the chaff and those cases we assign counsel, pay expense of printing the papers, and hear the case. This has occasionally resulted in unearthing grave abuses in trial courts which deprived the petitioner of his constitutional rights" (Mason, 1956:639).
Indeed, some of the Supreme Court's landmark cases have been filed by indigent petitioners. The most frequently cited example is Gideon v. Wainright (1963), which articulated the constitutional right to counsel in state criminal cases; Clarence Gideon, a Florida prison inmate, hand-wrote his own Supreme Court petition in pencil (O'Brien, 1993:202). Other more recent examples include Batson v. Kentucky (1986), which held that prosecutors may not exercise peremptory challenges to eliminate specific jurors on the basis of race; Coker v. Georgia (1977), which held that the imposition of the death penalty for the crime of rape violates the Eighth Amendment; Tison v. …