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Hastings Constitutional Law Quarterly

Abstract

The Supreme Court has increasingly adopted the practice of categorically and prospectively barring its more prolific petitioners from proceeding in forma pauperis—that is, without paying a filing fee. The optics of closing the courtroom doors to those who cannot afford to pay are not particularly seemly; nonetheless, the Court has persevered in and expanded this practice dramatically over the years. In the beginning, however, the Court grappled thoughtfully with the wisdom of this practice in a series of disputatious decisions. The article revisits these arguments in light of American tradition and legal precedent of unfettered access to the courts and concludes that, although concerns about the burden of reviewing frivolous petitions are legitimate, the gravity of the self-inflicted wound to public confidence in judicial fairness by institutionalizing discrimination against the poor means the Court should reconsider its use of prospective proscriptions against pestersome paupers.

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