Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence. And this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Greiner, and this is Proof Over Precedent.
This week we're bringing you a student voice.
[00:00:38] Speaker B: Hi, everyone, my name is Grace gao and I'm a 1L at HLS.
[00:00:43] Speaker C: Hi, everyone, my name is Matthew Homan and I'm a 2L here at HLS.
[00:00:47] Speaker B: Yeah, it's so good to talk to you today, Matthew. I read your blog post and I think you introduced a very new idea to me called Martinizing the Supreme Court.
So I was wondering, what are some of the historical backgrounds and what are like, what is this idea?
[00:01:04] Speaker C: To understand Martinizing, you first have to understand the history of informal pauperist petitions at the Supreme Court.
Basically, the Supreme Court recognizes that filing is extremely expensive to file at the Supreme Court. You have to pay a $300 docketing fee today, as well as variable printing costs for 40 bound copies of your filing.
Those variable costs can run into the thousands of dollars and those copies have to adhere to really strict guidelines. So there's super precise printing guidelines and everything for those copies. So it can be really expensive to file. And that's an issue for indigent litigants especially.
So for people who don't have the financial resources to meet that financial filing burden, they have an alternative option which is to file informa papuris. So based literally in the form of the popper, and that allows them to file without. Without those fees. So that proceeding first came about through federal legislation in 1892, which drew on earlier English and state examples.
And to obtain that kind of relief, an indigent litigant has to file a very detailed financial affidavit. They can ask for pretty intimate information. So this is like all kinds of stuff about somebody's financial record.
And there's tons of discretion for the federal judge on whether or not to grant, grant inform of pauper's relief when they receive one of those affidavits and a petition.
So, yeah, a lot of discretion for judges here.
And. But ideally it's a way that you can avoid these filing fees if you really have to.
[00:02:31] Speaker B: Yes, that's very interesting because from what I understand is that it really is a way about Making the court more accessible for the indigent litigants.
So if so, why would the court ever consider take away that option from those people? Like why would they prohibit this type of the future in form of popularis relief?
[00:02:54] Speaker C: So the issues really arise when you have frequent frivolous filers ffs, I'm going to, I'm going to trademark that one. But when these people come around there, there are instances in the past where people have abused the court's process and systems by filing repeated dozens and dozens of frivolous filings, which is just a drain on courts in general.
Many federal judges report having the persistent overwhelming flood of pro se litigation. Speaking from personal experience and some internships here at hls, responding to some of these pro site filings can be honestly quite time consuming when you're dealing with less refined legal arguments.
And given in this instance when we're talking about indigent filings, it often goes hand in hand with that pro se, that pro se experience as well.
So yeah, that's the reason why you would consider denying informal papyrus relief is to relieve that potential overwhelmed docket that might come about from those pffs.
And as a remedy here, the court initially started prospectively denying informa pauperis relief in 1989. So it didn't come up immediately. This is 100 years after Informa Pauperis was officially codified in 1892.
In 1989, the court first did this in the case of Jesse McDonald, who had filed 73 times over the previous 18 years. And he was also only prohibited from filing extraordinary writs. So a more narrow set of filings that he couldn't, that he couldn't obtain informal pauperist relief for in the future.
Next came Michael syndrome, who'd filed 43 times over three years. So that was in 1991.
And then later in 1991, the court actually amended its rules to formalize this process of prospectively denying the potential to obtain informal pauperis relief.
So in an April 1991amendment, it said that if satisfied that a petition is frivolous or malicious, the Court may deny leave to proceed inform a compromise.
That rule is then applied in Martin v. District of Columbia Court of Appeals, the case where the term martinizing comes from, in which the Court applied that rule to bar James Martin from proceeding in former pauperists while petitioning in future non criminal matters. This is a big expansion from the extraordinary risk prohibition against MacDonald just a couple years previously.
And Martin himself had actually filed 54 times over the previous decade, including 15 times in the previous two years. So I think from those early cases, you kind of get the sense that this is a pretty extreme measure to actually prospectively deny somebody the ability to obtain the ability to file for free.
And it only really came about in extreme cases. So it took dozens of filings before you. You would incur this, this kind of penalty.
[00:05:47] Speaker B: Yeah, I think you really provide a, like a, a bunch of history and like historical backgrounds to help me understand what marginizing means and how the Court has been using those in the presidents. I was wondering, like, what are some of the. Like, what are the court's reaction to this type of cases? Is a. More like a very strong proponent to this type of marginizing or. Because I think there are a lot of access to justice issues that we. That the marginizing can, can cause. So I was wondering like, if the court are like split on this issue or if they are pretty unanimous.
[00:06:25] Speaker C: Yeah. So initially, the practice of martinizing was quite controversial at the court. So in that first case that I mentioned, MacDonald was actually a 5, 4 case with a pretty punchy dissent from four individuals who basically said that the Court had adequate resources to address the concerns with frequent frivolous filers. They also noted that future filings might contain meritorious arguments.
They were just not really convinced that the prospective ban was the route to go given those features of these cases.
The majority in turn really hammered home on allocative efficiency.
So from their perspective, also citing important access to justice principles, emphasized that the resources that were going to responding to these frequent frivolous filers might better be used to respond to more meritorious cases.
So they were really looking at allocative efficiency towards. Towards a just outcome. So, yeah, in both those senses, there's access to justice concerns here.
Now I mentioned that it was initially four dissenters. Over time, those dissenters went quiet. The last really notable dissenter was Justice Stevens. And after his retirement from the bench, there was basically no more serious dissent on this topic until today.
[00:07:44] Speaker B: Yeah, that's interesting because I do see the arguments from both sides of like, we want more access to justice, but at the same time we also want to keep the Court more efficient and to keep the resources in the best use of those resources.
So I was wondering like, how those type of. You mentioned that this center has gone quiet for a bit and after those early cases, how has that kind of concept have been developed in the recent decades?
[00:08:12] Speaker C: So the Court has cited Martin hundreds of times to prospectively deny frequent frivolous filers from obtaining future in form of hopperis relief. It's a pretty standard two sentence order. I can read it in full. The Court says in any one of these cases, the motion of petitioner for leave to proceed in form of pauperis is denied and the petition for writ of certiorari is dismissed. See Rule 39.8.
As the petitioner has repeatedly abused this Court's process, the clerk is directed not to accept any future petitions in non criminal matters from petitioner unless the docketing fee required by Rule 38A is paid and the petition is submitted in compliance with Rule 33.1 C. Martin.
So it's become a really routine process for the Court.
The number of Martin orders has increased over time. A lot of that can probably be explained with the increased number of informa paparis petitions. In general, the Court has a much higher indigent litigation docket than it used to have. But the number of filings necessary to prompt the Martin order has also fallen. So initially as mentioned, McDonald involved 73 filings. Martin I think was 54.
That number has fallen precipitously in the decades since.
[00:09:25] Speaker B: Yeah, that's good to know about the new standard, more standardized procedure and requirements.
And I think in your blog post you also talked about a very recent case called Howell. How is that different from the earlier cases like Martin or McDonnell?
[00:09:42] Speaker C: Yeah, the reason to focus on this topic today is that Howell, a case order that the court released in January 2026 prompted the first dissent to one of these Martinizing orders from Ketanji Brown Jackson in a generation. So since Justice Stevens retirement from the bench and on the surface Howell looks like any other boilerplate Martinizing order. It has that same standard language as any other. But two things are different. First is the new low benchmark of six petitions over 14 years. That's right. Six petitions over 14 years. That is a far cry from McDonald's 73 petitions or Martin's 50 petitions.
[00:10:23] Speaker B: I think there is. It's very interesting because when I saw that it was like six petitions over 14 years and that doesn't sound like a lot to me. I think it's. It must. The case must be very significant in terms of how the Justices have been deciding. What are their reasonings including. I know Justice Jackson talk in the dissent a lot about this. What did they say about this case
[00:10:49] Speaker C: at first we don't really know what the majority is saying here or at least their reasoning.
That two sentence order merely cites to Martin and doesn't explore the reasoning any further.
As far as the dissent, it's a bit longer and elaborates more on the reasoning.
Ketanji Rao Jackson would not Martinize indigent prisoners under any circumstances.
From her perspective, doing so foolishly trades a pound of values for an ounce of convenience.
And with respect to keeping the courthouse doors open, from Ketanji Brown Jackson's perspective, the Justices simply do not and cannot know whether indigent prisoners who have filed multiple frivolous petitions in the past might have a meritorious claim in the future.
Ketanji Brown Jackson also emphasizes the potential of a future change in the law or worsening prison conditions to give rise to a future meritorious constitutional claim, which, as a result of the uniform Congress filing ban, could not be brought anymore.
So in many ways you've rehashed the earlier arguments from the initial era of when this Martinizing practice was still being sorted out at the Court, notably just the general value of keeping courthouse doors open and the importance of reinforcing that in wherever it emerges.
And also the issue of potential future meritorious litigation. It's discussed in the sense, but when we're thinking about prisoner litigation, a lot of this is about habeas petitions, as well as other constitutional challenges to confinement or to treatment from prison staff or a variety of other sorts of real serious issues that can arise in prison.
And for kbj, those issues are more than sufficient to overcome a majority's efficiency concerns.
In addition, especially on that point about the potential for future meritorious claims, one commentator since NYU law professor Daniel Harala since the dissent has noted Clarence Gideon's handwritten petition, which was filed while proceeding in former Papyrus that produced the modern right to counsel, as an example of something that could not be before the Court if Gideon had been Martinized, for example. So there, there are some real potential costs here that that KBJ identifies.
[00:13:09] Speaker B: Yeah, I do think their argument about preventing some potential meritorious claims in the future is compelling to me, but also also want to push back a little bit on the efficiency concerns that we just talked about. Did they ever mention anything about efficienc the court? Like how significant are these filings in terms of the burden on the Court, and did they ever mention anything about that in their opinions?
[00:13:38] Speaker C: So Justice Jackson does touch on these issues, but she simply notes that the administrative burdens are likely minimal for court staff. So for her it's really a question of magnitude. She views that the Court has the resources necessary to respond to these.
In researching for my blog post, I came across one scholar who even noted that responding to these petitions can take as few as five minutes.
And if that's the case, then I think Justice Jackson is really onto something here.
Also, her use of the word staff implies that these petitions don't even reach the Justices or maybe even the clerks.
So this might be something that's dealt with at an administrative level.
And one would imagine that a court as well resourced as the US Supreme Court should have the necessary resources to devote to these sorts of issues.
Justice Jackson also raises the petitions while incarcerated that prevent a real flood of litigation from behind bars. She notes that it's really time intensive to handwrite these petitions. Danny Howell's petition and the instant case for example, is 38 pages and all handwritten.
I took some time to read through that a little bit and it's just like many other pro se indigent filings. Remarkable how much just to think how much time and effort went into this sort of drafting process which stands in stark contrast to the Court's own two sentence response.
Professor Harawa also added a few additional barriers that already prevent this flood of litigation, including the Prison Litigation Reform Acts, exhaustion and filing free 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.
And these burdens allay those efficiency concerns in a more indirect way and that they represent barriers that exist to prevent the sort of flood of litigation that the Court seems to be concerned with here. Obviously they also represent their own access to justice questions and issues in and of themselves.
I would also add to these points thinking back to that 40 bound copies requirement for every single filing.
It's totally possible that the Court could use the resources devoted currently to.
To those filings towards something like responding to these purportedly frivolous, frivolous filings.
They did so just fine during COVID They actually did away with the printing requirement, although it's unfortunately come back since then.
[00:16:24] Speaker B: Yeah, I think that both. It sounds to me that it's more like a trade off problem that a lot of the time that court do consider efficiency problems, but at the same time that raises a lot of access to justice problems that we consider and including Justice Jackson in her dissenting opinions about how especially in the context of incarcerated people. So I think there are a lot of issues to unpack and I think you did a. You really made the technical part of the issue really clear to me. I was also wondering what are your thoughts? Like what are your some of your personal opinions on this issue which side of the argument that you buy more,
[00:17:05] Speaker C: though at present it's worth noting that this is still 8:1 on the court. Justice Jackson is the only one who's dissenting from this kind of order, even at that that sixth petition in in 14 years level.
That being said, I think she raises some very serious concerns here.
I think that the the value of keeping courthouse doors open is really important, and I'd be looking for the Supreme Court to reinforce that value however they can.
I also buy what she says about the sort of minimal costs associated with responding to these petitions.
I think responding to Danny Howell's, for example, seventh or eighth or ninth petition might be worth the Court's time for the purpose of reinforcing that norm.
Maybe once you get to the sorts of numbers that initially prompted Martinizing as a concept that dozens of cases that are all frivolous, maybe you reach more pressing efficiency concerns.
But at least at the level that it is now, it seems quite alarming that the Court is willing to do away with effectively do away with the petitioner's right or ability to file for an indigent litigant in prison. It's really difficult to imagine how they might come by resources that would allow them to overcome the lack of ability to file for informal papyrus relief.
So it seems that the Court is effectively closing off courthouse doors here. Elsewhere, the court seems to be making strides as far as indigent litigant support. For example, the Court has just announced that they'll be holding a public defender office to support indigent prisoner filings, which should be a good step, although generally that office is going to be more limited towards criminal matters, whereas this Martinizing issue is more expansive in the civil context. So I'd like to see the Court potentially adopt some more sweeping reforms aimed at improving access in this civil context as well.
[00:19:16] Speaker B: Yeah, it's very interesting for me to learn about this concept of marginizing and how it has been developing since the very early cases to more recent one. And I do personally look forward to see more developments in this issue.
And yeah, just thank you so much for introducing me to this topic.
[00:19:36] Speaker C: Of course. Thank you so much for speaking with me.
[00:19:38] Speaker B: Of course.
[00:19:40] Speaker A: Take Care of Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
Thanks for listening. If we piqued your interest, please subscribe wherever you get your podcasts. Even better, leave us a rating or share an episode with a friend or on social media.
Here's a sneak preview of what we'll bring you next week.
[00:20:07] Speaker D: Heirs property is when a parcel or a piece of property, essentially whoever's name is on the deed is deceased and so that person is no longer living. However, their heirs co own the property and so that's how it really becomes heirs property. They co own it in undivided shares according to where they are in the lineage from the deceased person whose name is on the deed.
Also heirs property might be created when the person doesn't have a will or the will isn't probated or administered correctly. It also can be created when somebody does have a will and they do all my children equally. And you know, as far as property goes, we always say where where is your unequal share? Is it the part by the swamp? Is it the part by the road? Is it the part in this kitchen sink? You're not able to know. And so that's where a lot of issues come up.
