Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from accessing the courts when they were unable to pay court filing fees. The shocking lesson of this triumvirate of Supreme Court cases is that certain poor persons who cannot afford to pay court filing fees can be denied access to the Judicial Branch of government to seek resolution of their civil legal claims. But paying court filing fees, like paying government-imposed fees to vote, should not be a precondition to the exercise of a constitutional right. This Article asserts that these three cases should have recognized that the poor—like all other groups, organizations, and persons—have a First Amendment right to access the courts to seek redress of their grievances, even when they cannot afford to pay court filing fees.
First, Part I of this Article identifies the important role that the Judicial Branch of government plays in the enforcement of the civil legal rights of Americans and traces the development of the First Amendment right to access the courts for this purpose. Part II summarizes typical civil court filing fees and explains how available fee-waiver processes are ineffective. Parts III and IV consider the triumvirate of Supreme Court cases involving poor plaintiffs and asserts that the Court should have considered their rights to access the courts under the First Amendment right to petition the government for redress of grievances. Finally, Part V analogizes to Supreme Court precedent involving the right to vote and asserts that the imposition of fees for pursuing civil litigation, like fees for voting, violates equal protection as an improper precondition to the exercise of a constitutional right.
Henry Rose, Why Do the Poor Not Have a Constitutional Right to File Civil Claims in Court Under Their First Amendment Right to Petition the Government for a Redress of Grievances?, 44 SEATTLE U. L. REV. 757 (2021).
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