Study shows poor litigants less likely to appear before U.S. Supreme Court

By Roberta M. Gubbins

Legal News

Michigan State University political science major, Sydney Hawthorne, was curious. She wanted to study the process by which the United States Supreme Court decides which cases it will accept for review. In 2010 she applied for and received the College of Social Science's Dean Apprenticeship, which provided research funds for her to use to satisfy her curiosity.

"My research question was, 'What influences the Supreme Court's decision to grant or deny review of a case?'" said Hawthorne, of Grand Blanc. "There are thousands of cases each year that want to get reviewed before the Supreme Court, so how do they (the litigants) beat the odds?"

The United States Supreme Court, like all courts, is governed by court rules. Rule Ten, titled "considerations governing review" on certiorari lists the conditions under which a petition seeking judicial review of a lower court decisions will be granted. If the review or cert is granted, the court will enter an order directing a lower court, tribunal, or public authority to send the record in a given case for review.

Rule ten states that the petition for cert can only be granted for "compelling reasons" such as:

* A U.S. Court of Appeals enters a decision that is in conflict with another U.S. Court of Appeals on the same important matter; has decided a federal question that conflicts with a decision of a state court of last resort or has so far departed from the usual course of judicial proceedings that the US court must exercise its supervisory power.

* A state court of last resort renders a decision on a federal question that conflicts with the decision of another state court of last resort or

* A state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this court, or has decided an important federal question in a way that conflicts with relevant decisions of this court.

Hawthorne found that, despite what the rule states, in the battle between Joe Public and John Prisoner, paupers (which can include prisoners) are 30 percent less likely to have their cases heard. Paupers are defined as low-income individuals, who often can't afford to hire lawyers to assist them in drafting and filing petitions.

"Research on Supreme Court agenda setting is quite rare" said her faculty adviser Ryan Black, assistant professor of political science. "And there's no published research that appropriately tests what makes cases less likely to be granted review.

"The court's agenda-setting process is how it picks the cases that ultimately will be used to set legal policy on topics as wide ranging as the death penalty to free speech to the rights of the criminally accused," Black said. "So we should care about the process by which the court, to borrow from the title of a book, 'decides to decide' cases."

The student-faculty team analyzed 403 petitions filed from October 1992 to June 1993, coding variables from archival data and personal papers of former Justice Harry Blackmun. In addition to pauper status, the team also found unpublished opinions by lower courts--often cut-and-dry cases that courts don't feel need publishing--were 50 percent less likely to be heard by the Supreme Court.

At the same time, the study revealed that the number of petitions filed with the Supreme Court has increased, while the number of petitions granted appeal has decreased, especially for paupers.

From 1935 to 2004, the Supreme Court granted review in about 8 percent of all paid petitions and only 1 percent of pauper petitions. The court receives about 8,000 to 9,000 petitions per year.

"The whole decision process is pretty one-sided to begin with," Black said. "But if you're at the bottom of the food chain, it's pretty dismal in terms of odds."

So why the discrepancy?

Black said since courts are generally interested in granting review to cases that have broad implications for legal policy, a skilled and experienced attorney is necessary to be recognized by the Supreme Court.

Furthermore, "The time period we analyzed is one in which the justices have relatively conservative judicial preferences. If we were to go back farther in time, when the court was more liberal, we would likely find a smaller anti-pauper bias," Black said.

Earlier this month, Hawthorne was named the grand prize winner of the Spring Undergraduate Research and Arts Forum's social science/humanities division.

Published: Tue, Aug 30, 2011


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