The Supreme Court routinely bars poor prisoners from filing appeals. Justice Ketanji Brown Jackson thinks that’s a big problem.
That no other justice joined her dissent airing that view Tuesday suggests she’s the only current justice who feels that way.
I emphasize current justice because Jackson’s dissent recalled the more robust opposition to the court’s march toward banning filings from litigants who can’t afford the standard fees. The Biden appointee wrote that the court began to bar prospective filings in 1989 over the dissent of four justices, then two years later over dissent from three justices and the following year over dissent from two justices.
On Tuesday, it was only Jackson.
She wrote that, in the last case she referenced, 1992’s Martin v. District of Columbia Court of Appeals, the court “significantly expanded the reach of its filing bar,” banning indigent litigants from free filings in noncriminal cases when they’ve been found to have abused the process.
Since then, Jackson wrote, the court “has steadily expanded the reach of Martin, transforming what was once an extraordinary measure into a routine order.” She noted that it generally costs $300 to file a Supreme Court petition, “along with the (much higher) cost of printing 40 bound copies of their filing.”
Her dissent came in the case of Danny Howell, an indigent inmate serving a 70-year sentence in Indiana for child molestation and sexual misconduct with a minor. Jackson called Howell’s case “a prime example” of the problem with the court’s approach, noting that he only filed six petitions in a 14-year span (“hardly a flood,” she wrote) and that his last petition was eight years ago.
“Howell’s case is not an outlier,” Jackson wrote, counting hundreds of times the court has prospectively barred indigent litigants from free filings. “We no longer wait for a petitioner to inundate the Court with frivolous filings. Instead, we reflexively Martinize petitioners after only a few petitions,” she wrote, using a shorthand term for applying the Martin precedent.
The court’s brief, unsigned order from which Jackson dissented said that because Howell “has repeatedly abused this Court’s process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioner” unless he pays the required fee. The court cited the Martin precedent to support its position.
Jackson deemed the issue especially serious for prisoners. “Even if Howell were to identify meritorious grounds for habeas relief or wanted to bring a justifiable challenge to his conditions of confinement, he will now be prevented from doing so unless he pays the filing fee — no matter what,” Jackson wrote. She called the court’s blanket ban “a questionable restriction as to any litigant who cannot afford to pay a filing fee” and “an intolerable one as to incarcerated individuals.”
She pointed out the potential harm that comes from closing the courthouse doors. Among other cases, she noted 2016’s Welch v. United States, in which an indigent litigant brought an appeal that led to a significant ruling for criminal defendants nationwide. “But if Welch had been Martinized, he would have been unable to seek relief in this Court,” Jackson wrote, urging her colleagues to “err on the side of keeping our courthouse doors open.” Tuesday’s dissent is only Jackson’s latest solo outing in which she staked out an outlier position, even apart from her fellow Democratic-appointed Justices Sonia Sotomayor and Elena Kagan. It’s unsurprising that Kagan didn’t join but perhaps more notable that Sotomayor didn’t. The latter has a long record of impassioned writings on justice issues and has sometimes joined Jackson when Kagan has not. Jackson’s latest independent effort brings to mind another lone dissent she wrote last term, in which she lamented that the court’s ruling gave “fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.” Even if she has to go it alone, the justice seems intent on conveying these views to the public and, perhaps, to a like-minded future court that seems very far away. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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