Justice for all? The Supreme Court's denial of pro se petitions for certiorari.

• Author: Smith, Kevin H.

"I'm going to take this case all the way to the Supreme Court!" Each Term,(1) approximately two thousand civil(2) litigants, disappointed by an adverse decision in a lower court, make good on this refrain by paying the required fee,(3) and filing a petition for a writ of certiorari(4) with the United States Supreme Court. Many of these litigants are disappointed further when the Court exercises its discretion and declines to review their case.(5) Each Term, only about 5% of the paid petitions for certiorari filed by civil litigants are granted plenary review, that is, a full briefing, an oral argument, and a full written decision on the merits.(6)

Among those litigants who file paid civil petitions for certiorari each Term are several hundred pro se petitioners,(7) men and women who proceed, by right,(8) to represent themselves, armed in most cases with more determination than legal expertise. The Court almost invariably denies their petitions. None of the sixty-five pro se petitions in a sample of 273 randomly selected paid civil petitions for certiorari raising an equal protection issue disposed of during the Court's 1981 through 1987 Terms was granted.(9) Furthermore, data indicate that the Court granted only one, or a mere .3%, of the approximately three hundred paid civil petitions for certiorari filed pro se which were disposed of during the Court's 1994 Term.(10) Scholars who have studied the Court's plenary docket have noted the almost total absence of pro se civil litigants among those litigants whose paid petitions are granted.(11) What are we to make of such striking data?

On the one hand, these data raise a profound concern that the Supreme Court is denying pro se petitioners their last opportunity for legal(12) and political(13) justice in a system in which justice often is expensive.(14) Indeed, the essentially complete denial of pro se petitions for certiorari presents a prima facie case of bias toward the poor(15) and promotes an appropriate apprehension that the Justices are failing to `"administer justice without respect to persons, and do equal right to the poor and to the rich,'" as required by their oath of office.(16)

On the other hand, it may be argued that "[u]nrepresented litigants may clutter up cases with rambling, illogical reams of what purport to be pleadings, motions, and briefs. They may seek out courtrooms as forums to vent strongly held but legally unfounded social and political theories or as battlegrounds to satisfy private, legally unredressable vendettas."(17) From this perspective, the Supreme Court's denial of pro se petitions may represent appropriate action to promote the efficient operation of the judicial system.

Five important--and related--descriptive and normative questions are raised by the Supreme Court's essentially complete denial of pro se paid civil petitions for certiorari: What functions does the Supreme Court play in the American legal and political systems? Are the attributes of petitions filed by pro se litigants different in any material respect from petitions filed by non-pro se litigants? Are the attributes of cases in which pro se petitions are filed different in any material respect from the attributes of cases in which non-pro se litigants file petitions? Given the Supreme Court's functions within the American legal and political systems, and the characteristics of pro se petitions and their underlying cases, is there any legitimate reason for pro se petitions to be denied at a much higher rate than non-pro se petitions? Does the refusal to grant pro se petitions deny litigants who cannot afford attorneys equal justice before the Court or justice within the larger American political system?

This Article addresses these questions by analyzing a data set comprising 273 randomly selected paid civil cases involving petitions for certiorari containing equal protection issues disposed of during the Court's 1981 through 1987 Terms.(18)

This Article is divided into four main parts. Part I briefly explores the Supreme Court's functions within the American legal and political systems.(19) Part II further refines the view of the Supreme Court's functions by examining the formal and informal factors which influence the Court's certiorari decision-making process, including jurisdictional guidelines established by the Constitution, statutes, and Court rules.(20) Part III tests eight hypotheses which, if supported, would strongly suggest that cases involving pro se petitions lack the characteristics which would make them likely candidates for selection by a Court which is seeking to fulfill its role in the American legal and political systems.(21) Part IV evaluates the legal and political implications of the empirical findings.(22) I conclude that the Court's denial of paid pro se civil petitions constitutes rational judicial action in light of both the Court's functions and the characteristics displayed by cases in which pro se petitions are filed.

1. THE SUPREME COURT'S FUNCTIONS IN THE AMERICAN LEGAL AND POLITICAL SYSTEMS

   According to popular mythology, the Supreme Court is a nonpolitical, governmental institution in which the Justices impartially apply "the law" in order to reach the "correct" result in each case the Court hears.(23) Any disappointed litigant, the myth professes, has the right to have his case reviewed by the Supreme Court in order to ensure that any legal error committed in a lower court is remedied and the correct legal result is reached.(24) But the popular myth is erroneous(25) in several respects.

   First, although the Supreme Court functions as a court of error correction, it is not primarily a court of legal error correction.(26) "Error" may be defined in two ways: legal error and ideological error.(27) Thus, two possible models of error correction exist.

   One model of "error correction" follows from the viewpoint that law is determinate and that a legal error occurs when there has been an "objective" or "actual" mistake in the creation, selection, interpretation, or application of "the law" to the litigant's specific case.(28) When the average citizen thinks of error correction, he probably has this model in mind. In addition, many attorneys, law professors, and lower-court judges also conceive of error-correction using this model.(29)

   An alternative model of "error correction" results from the perspective that law frequently is indeterminate; that the law's indeterminacy gives rise to the opportunity for the exercise of judicial discretion; that Justices are policy-motivated and seek to promote their individual policy goals; and that Justices utilize the opportunity for discretion to correct ideological errors committed by lower courts.(30) An ideologically "incorrect" decision is a decision which is not in harmony with the Justice's underlying political, social, economic, religious, or philosophical belief structure.(31)

   The Justices are among the first to assert the Supreme Court is not primarily a court of legal error correction.(32) There are, of course, the very rare cases--frequently, capital cases--in which the Court grants certiorari simply to correct a perceived injustice to a particular party as a result of a legal error in a lower court.(33) However, the principal situations in which the Court grants a petition for certiorari to correct a legal error occur when (1) a lower court's decision "has decided an important federal question in a way that conflicts with a decision by a state court of last resort" or (2) a lower court's decision "has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of [the Supreme] Court's supervisory power."(34) In both these circumstances, any legal error perpetrated by the lower court involves a matter of more general importance than simply an injustice done to a particular party to the litigation. In correcting the legal error, the Court primarily acts to promote a higher value, such as maintaining the supremacy and accurate interpretation of Supreme Court decisions.(35) In these instances, the Court does not act as the court of legal error correction as envisioned by the popular myth structure. Although the Justices are willing to concede the Supreme Court's functions differ from the popular myth structure view of legal error correction, they are not willing to admit the Court is a court of ideological error correction.(36) Rather, the Justices imply through the Supreme Court Rules and through statements in their written opinions concerning why the Court granted certiorari in a particular case that although the Court may not act to correct legal errors, the Justices are acting in furtherance of the Court's historical functions rather than for personal, ideological reasons.(37) Despite these printed declarations, there is ample empirical(38) and anecdotal(39) evidence that individual Justices operate, and the Court as an institution operates, in keeping with the ideological error correction model.

   So despite all popular myths to the contrary, the Supreme Court is not primarily a court of legal error correction. Any petition for certiorari which requests the Court to correct a simple legal error--particularly a legal error which affects only the petitioner--probably will be denied. If pro se petitions are more likely than non-pro se petitions to make such simple requests, that is, to follow the popular myth structure concerning the role of the Supreme Court as error corrector, it may partially explain why pro se petitions almost invariably are denied. Further, if non-pro se petitions offered better vehicles for permitting the Justices individually, and the Court collectively, to attain policy goals, it would partially explain why a much higher percentage of non-pro se petitions are granted.

   The popular myth that the Supreme Court is a court of legal, not ideological, error...