Equal Ju$tice Under Law

May 03, 1991

"Equal Justice Under Law" is carved in the architrave over the entrance to the Supreme Court. A majority of the court's justices have now changed that, in effect, to "Equal Justice Under Law for Those Who Can Afford Court Fees."

The court changed its rules to forbid "frivolous" indigents from availing themselves of the traditional right to petition for review of a lower court order without paying a docketing fee. "Frivolous filings . . . calculated to disrupt the orderly consideration of cases" will not be accepted by the clerk of the court, the court said in an unsigned order by its six conservative members.

In the particular case, there was no agreement that the petitioner was in fact acting frivolously or attempting to disrupt.

The court majority said he was responsible for 32 "pauper's filings" in the past three terms of the Supreme Court. But as Justice Thurgood Marshall said for himself and Justices Harry Blackmun and John Paul Stevens in dissent, only four of those were of the type the court was concerned about and banned.

Justice Marshall said the problem "overly energetic litigants" pose has been "exaggerated." That's true. Nevertheless, they can disrupt proceedings and interfere with the allocation of a scarce and precious commodity -- a court's time. But the fair way to deal with the problem -- whatever its magnitude -- is not to single out only the indigent among the frivolous but to concoct a fair and reasonable test of "calculated disruptiveness" and "frivolousness" and apply it to all petitioners, those able as well as those not able to pay.

As the conservative Justice John M. Harlan said 20 years ago, "There is no necessary connection between a litigant's assets and the seriousness of his motives. . . Moreover, other alternatives exist to fees and cost requirements as a means of conserving the time of courts. . . ."

Justice Hugo Black said 35 years ago that legal classifications based on ability to pay violate equal protection and due process guarantees. "All people charged with crime must, so far as the law is concerned, stand on an equality before the bar of justice in every American court," he said. That should be at least as true in the Supreme Court as it is in any other.

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