The U.S. Supreme Court, known for accepting only about 1% of the thousands of appeals it receives annually, recently agreed to hear a petition filed by two incarcerated individuals, Topaz Johnson and Ian Henderson. This is a rare occurrence as the Supreme Court docket is largely shaped by a small group of highly successful and elite appellate attorneys. These attorneys often have impressive credentials, including clerkships with Supreme Court justices and experience in the U.S. Solicitor General's Office.
The success of these elite lawyers is significant; for example, Paul Clement of Clement & Murphy has had 27% of his 177 petitions granted between 2000 and 2024. Lisa Blatt of Williams & Connolly boasts an even higher grant rate of 43% for her 61 petitions, while Jeffrey Fisher, co-director of Stanford Law School's Supreme Court Litigation Clinic, achieved a 33% grant rate for his 89 petitions. Other prominent figures like Seth Waxman and Kannon Shanmugam have grant rates of 25% and 28% respectively. These statistics highlight the challenging odds faced by most litigants, particularly those filing "in forma pauperis" (as indigent litigants).
Johnson and Henderson's case, 25-457 Johnson v. High Desert State Prison, challenges a lower court's decision regarding the ability of indigent prisoners to collectively pay the $350 fee required to file a federal lawsuit. The District Court had mandated that each plaintiff file a separate lawsuit and pay the full fee, leading to the severance of Johnson and Henderson's case. While the Ninth Circuit reversed this decision, the Supreme Court's agreement to hear the case, despite Justice Kagan's support and a dissent from Justices Sotomayor and Jackson from denial of certiorari, signals an unusual moment where pro se litigants, or those initially without counsel, gain attention.
Historically, pro se litigants have a mixed record at the Supreme Court. Between 1945 and 2006, 83 pro se litigants argued before the Court, with a 46.42% win rate and an additional 11.9% achieving partial victories. However, the Court's rules have evolved, with Rule 28.8 now requiring oral arguments to be presented only by members of the Supreme Court Bar. This effectively means that all oral arguments must be presented by attorneys, as membership in the Bar requires admission to practice before the Supreme Court. The success of Johnson and Henderson in simply getting their petition heard stands out against a backdrop where appeals from indigent defendants have been declining.
