In Re Amendment to Rule 39/Dissent Marshall

by Thurgood Marshall

Justice MARSHALL, with whom Justice BLACKMUN and Justice STEVENS join, dissenting.

Today, this Court blacklists another indigent pro se litigant. The order issued today, which bars future in forma pauperis filings for extraordinary writs by John Demos and hints that restrictions on other filings by Demos might be forthcoming, marks the third such proscription the Court has initiated in the last two years. See In re Sindram, 498 U.S. 177 (1991); In re McDonald, 489 U.S. 180 (1989). Yet, as in Sindram and McDonald, the Court fails to identify any statute or rule giving it the extraordinary authority to impose a permanent ban on an indigent litigant's in forma pauperis filings. Nor does the Court satisfactorily explain why it has singled out an indigent litigant for having lodged frivolous filings when paying litigants often are guilty of the same sin.

I continue to oppose this Court's unseemly practice of banning in forma pauperis filings by indigent litigants. See In re Sindram, supra, at 181 (MARSHALL, J., dissenting; In re McDonald, supra, at 185 (1989) (Brennan, J., dissenting, joined by MARSHALL, BLACKMUN, and STEVENS, JJ.). As I have argued, the Court's assessment of the disruption that an overly energetic litigant like Demos poses to "the orderly consideration of cases," ante, at 17, is greatly exaggerated. See In re Sindram, supra, at 181 (dissenting opinion). The Court is sorely mistaken if it believes that the solution to the problem of a crowded docket is to crack down on a litigant like Demos.

Two years ago, Justice Brennan sagely warned that in "needlessly depart[ing] from its generous tradition" of leaving its doors open to all classes of litigants, the Court "sets sail on a journey whose landing point is uncertain." In re McDonald, supra, at 188 (dissenting opinion). The journey's ominous destination is becoming apparent. The Court appears resolved to close its doors to increasing numbers of indigent litigants -- and for increasingly less justifiable reasons.I fear that the Court's action today portends even more Draconian restrictions on the access of indigent litigants to this Court.

In closing its doors today to another indigent litigant, the Court moves ever closer to the day when it leaves an indigent litigant with a meritorious claim out in the cold. And with each barrier that it places in the way of indigent litigants, and with each instance in which it castigates such litigants for having "abused the system," ante, at 17, the court can only reinforce in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome here.

I dissent.