By Matthew Hohmann, J.D. Candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
The ideal of keeping courthouse doors open to indigent litigants has deep roots in American law. The Magna Carta provides that “[w]e will not sell, or deny, or delay right or justice to anyone,” and the United States Supreme Court frequently invokes its “longstanding tradition” of leaving its door open to “all classes of litigants.” This ideal animates some of the Court’s most access-expanding holdings, including its recognition of the right to counsel for many indigent criminal defendants in Gideon v. Wainwright.
Justice Ketanji Brown-Jackson recently raised the alarm about the continued vitality of this ideal while dissenting from the Court’s two-sentence order in Indiana, ex rel. Howell v. Cir. Ct. of Indiana, Wells Cnty. barring Danny Howell, an indigent prisoner, from obtaining future filing fee waivers because of his prior frivolous pro se filings. The order effectively extinguished Howell’s ability to file without external financial assistance. The Court’s order is a worrying development to its relatively new practice of prospectively prohibiting indigent petitioners from filing for free.
Frivolous filings and in forma pauperis petitions at the Supreme Court
Filing at the Supreme Court is expensive. Pursuant to the Court’s rules, litigants must pay both a $300 docketing fee and printing fees for 40 bound copies of each filing. The variable printing costs can run into the thousands.
Indigent litigants have another option: proceeding in forma pauperis. Since 1892, federal law has allowed indigent litigants to petition federal courts for in forma pauperis relief to avoid filing fees. To obtain such relief, a litigant must file a detailed financial affidavit attesting to indigency. The Court then may waive filing fees if it is satisfied that the litigant is indigent.
Beginning in the late 1980s, the Court routinely has barred frequent frivolous filers from obtaining future in forma pauperis relief. Initially, such prohibitions targeted only egregious cases and were narrow in scope. Jessie McDonald, the first target of such an order, had filed 73 times over 18 years before the Court prohibited him from filing future extraordinary writs without fees. A similar order targeting Michael Sindram followed—he had filed 43 times during the previous three years.
The Court subsequently formalized the practice of barring in forma pauperis relief for frequent frivolous filers through an April 1991 amendment to its rules. Rule 39.8 states: “If satisfied that a petition… is frivolous or malicious, the Court may deny leave to proceed in forma pauperis.” Then in Martin v. District of Columbia Court of Appeals, the Court applied Rule 39.8 to bar James Martin from proceeding in forma pauperis while petitioning in future noncriminal matters (an expansion from McDonald’s extraordinary writs prohibition.) Martin had filed 54 times over the previous decade, including 15 in the previous two years.
Such in forma pauperis bans were initially controversial. The first order targeting McDonald garnered the support of only five justices and a dissent from the remaining four. By 1992 when the Court decided Martin, the dissenters had shrunk to just two: Justices Blackmun and Stevens. After Justice Stevens retired from the bench in 2010, the dissenters went quiet altogether.
The majority in these early cases justified their position with the Court’s responsibility to allocate resources “in a way that promotes the interests of justice.” By allegedly shifting resources that would have gone to addressing future frivolous filings to more meritorious cases, the Court claimed to have improved the access landscape. The dissenters responded with regret at the Court’s decision to shut the courthouse doors to indigent petitioners when the Court had adequate resources to dispose of all filings. Dissenters also expressed concern that now-prohibited filings might include meritorious arguments.
In the intervening decades, the Court has cited Martin hundreds of times to prohibit indigent frivolous filers from in forma pauperis relief prospectively, a process now colloquially known at the Court as “Martinizing.” Over time, the number of Martin orders has increased with the number of in forma pauperis petitions. However, the number of frivolous filings necessary to prompt a Martin order has fallen.
The Court’s New Benchmark
In January 2026, the Court Martinized Howell, who had filed a 38-page handwritten petition for certiorari, with a boilerplate per curiam order directing the Clerk “not to accept any further petitions in noncriminal matters from petitioner” without payment of filing fees. Howell’s filing pattern prior to his Martinizing order was different from the original frequent frivolous filers. Unlike McDonald’s 73 filings or Martin’s 54, Howell had filed only six petitions in 14 years. Also unlike those earlier petitioners, Howell is incarcerated.
These dissimilar elements of Howell’s case raise access-to-justice concerns and prompted the first dissent to a Martin order in a generation. Taking the torch from Justice Stevens, Justice Ketanji Brown-Jackson observed that a “categorial, forward-looking filing bar is a questionable restriction as to any litigant who cannot afford to pay a filing fee.” She would not have applied the filing bar “that the Court imposes for frequent ‘frivolous’ filers to prisoners who, like Howell, seek to proceed in forma pauperis.”
For Justice Brown-Jackson, the Howell majority “foolishly trade[d] a pound of values for an ounce of convenience.” With respect to the value of keeping the courthouse doors open, the Justices “simply d[id] not and c[ould] not know whether indigent prisoners who ha[d] filed multiple ‘frivolous’ petitions in the past might have a meritorious claim in the future.” Justice Brown-Jackson emphasized the potential of a favorable change in the law or worsening prison conditions to give rise to a future meritorious constitutional claim which, as a result of the in forma pauperis filing ban, could not be brought.
In subsequent commentary, NYU Law Professor Daniel Harawa added an example demonstrating this point: Clarence Gideon’s handwritten petition, filed while proceeding in forma pauperis, that produced the modern right to counsel. If Gideon had been Martinized, the Court may have never seen his petition.
The majority did not respond directly to Justice Brown-Jackson’s criticism, nor did it include any additional justifications in the order. However, to the extent that Howell adopted the reasoning of Martin, the majority also grounded its position in a competing access-to-justice-oriented value: efficiently allocating resources to maximize justice.
In response to efficiency concerns, Justice Brown-Jackson argued that the administrative burdens of responding to future frivolous filings as minimal. She stated that “it is not difficult for Court staff to sort . . . potentially meritorious claims from repetitive, meritless petitions.” By one estimate, a staff member might perform such a task in five minutes or less.
Justice Brown-Jackson also raised the practical barriers to filing petitions while incarcerated—such as the “time-intensive” handwriting process and a lack of “regular access to paper, pens, envelopes and stamps”—that already prevented a flood of litigation from behind bars (and constitute access-to-justice barriers in their own right). Professor Harawa added a few barriers of his own: the Prison Litigation Reform Act’s exhaustion and filing fee requirements for incarcerated indigent litigants; the procedural “labyrinth” and strict limitations of habeas corpus review; poor access to necessary legal materials in prison libraries; local rules that prevent prisoners from helping each other with filings; and the lingering fear of retaliation. These burdens both allayed the majority’s efficiency concerns and constituted cause for skepticism of the Court’s move to increase them further.
The efficiency concerns were likewise suspect because of the elephant in the room—or more accurately, the elephant-sized stack of paper. Although foregoing printing during COVID, the Court has since reimposed its requirement of 40 bound copies for each filing, a scheme that, according to California Western School of Law Professor William Aceves, “does not facilitate an open and accessible justice system.” One wonders whether a small portion of the resources allocated for printing instead might be used to respond to Howell’s next petition.
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