The Volokh Conspiracy
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KBJ Would Not Martinize IFP Petitioners In Criminal Cases
Justice Jackson would instead let "Court staff . . . sort out" meritless petitions.
On every Supreme Court order list, there is a familiar notation:
As the petitioners have repeatedly abused this Court's process, the Clerk is directed not to accept any further petitions in noncriminal matters from petitioners unless the docketing fees required by Rule 38(a) are paid and the petitions are submitted in compliance with Rule 33.1. See Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam)
I'll admit I've never actually read Martin. (I have read United States v. Detroit Timber & Lumber Co., if you get the reference.) Today, in Howell v. Circuit Court of Indiana, Justice Jackson issued a dissent opposing the application of Martin to IFP (in forma pauperis) petitioners who are in prison.
The history here is fascinating. In 1989, the Supreme Court for the first time issued a permanent denial of IFP status to Jessie McDonald, who filed 73 petitions for extraordinary writs over the course of two decades. As Justice Jackson notes, McDonald was attacking a conviction, but was no longer incarcerated. Two years later, the Court issued a similar bar to Michael Sindram who sought 43 extraordinary writs over the course of three years. And in 1992, the Court decided Martin. Here, the petitioner filed 54 IFP petitions in a variety of civil disputes. Jackson explained a shorthand that I had never heard:
Martin's circumstances lent this Court a useful shorthand: When we bar indigent litigants from filing any future in forma pauperis petitions, we now say that we are "Martinizing" them.
Martinizing. Kind of like Mirandizing or Simonizing.
But the Court didn't stop there. The Justices began to Martinize IFP petitions from prisoners. As a result, once barred, they could not challenge new conditions of confinement, or raise claims based on new precedent. Jackson relates that more than half of the petitioners over the past two decades who were Martinized were prisoners. Jackson found it unconscionable to apply this doctrine to prisoners, who might later have valid claims based on changed law. Indeed, numerous IFP petitioners have raised valid claims before the Supreme Court. What if they were barred by Martin? Jackson writes:
In short, because time moves on after a person is imprisoned and things happen, we simply do not and cannot know whether indigent prisoners who have filed multiple "frivolous" petitions in the past might have a meritorious claimin the future. When liberty, bodily integrity, or fundamental fairness is at stake, preventing such litigants from ever again accessing our review imperils our ability to provide equal justice for all.
No doubt the rationale behind Martin was to reduce the amount of Court time spent on frivolous petitions. How would Jackson resolve that issue? She would delegate the task to Court staff:
Meanwhile, the administrative burden involved in reviewing repeated (even frivolous) petitions filed by prisoners is minimal. It is the rare incarcerated person who has the wherewithal to flood the Court with filings, at least inthe way that Martin, Sindram, and McDonald had done. Practicalities ordinarily do not allow for this, since prisoners often lack regular access to paper, pens, envelopes, and stamps. Pro se prisoners also usually handwrite their filings—a time-intensive process. And, regardless, it is not difficult for Court staff to sort out in forma pauperis filings that raise new, potentially meritorious claims from repetitive, meritless petitions.
This last sentence is significant, as she pulls back the curtain. Jackson is acknowledging that the Justices will never even see these petitions. They will be sortedout. And the reference to staff, rather than clerks, suggests that the law clerks may not see it either. It could be that the clerk's office would perform this screen. I've found the employees in the clerk's office to be extremely professional, but their job is not to decide which constitutional claims might warrant Supreme Court review.
When I was clerking, staff attorneys would take the first stab at certain pro se cases. We found that work to be very inconsistent, and some cases that staff attorneys thought were meritless, the judge found had merit, and vice versa. I suppose Jackson's approach could work if the Justices and their clerks scrutinized every IFP petition. But I think the thrust of her comment is that sort of secondary review would not happen.
Ultimately, I agree with Jackson's complaint about Martin, but I am skeptical of her remedy.
In any event, every order list will now get a bit longer with a new Jackson notation. Consider this entry:
Justice Jackson, dissenting: I respectfully dissent from the order barring these incarcerated petitioners from filing future in forma pauperis petitions in noncriminal matters. See Howell v. Circuit Court of Indiana, 607 U. S. ___ (2026) (Jackson, J., dissenting).
Even where I disagree from Justice Jackson, I usually learn something new.
