Indigency

Indigency During the 1950s and 1960s, the Warren Court initiated a massive expansion of the rights of many underprivileged segments of American society, including racial and ethnic minorities. Using the Equal Protection Clause of the Fourteenth Amendment, the Court applied “strict scrutiny” to statutes that discriminated against “discrete and insular minorities” or by drawing “suspect classifications.” Such statutes had to be justified by a compelling state interest, rather than merely supported by a rational basis. This heightened scrutiny for laws further disadvantaging the already disadvantaged led many scholars to speculate that the Court might soon expand its protection to the indigent. Like racial minorities, the indigent seemed to suffer disproportionately in a political system in which they lacked the power to influence legislators. Thus, they might be considered a “discrete and insular minority,” entitled to greater judicial protection.

In a number of cases the Court appeared to be moving in that direction. In Gideon v. Wainwright (1963) the Court held that indigent criminal defendants were constitutionally entitled to a state‐appointed lawyer in felony prosecutions, and in Griffin v. Illinois (1956) it held that such defendants were entitled to a free trial transcript for purposes of appeal (see Counsel, Right to). In Shapiro v. Thompson (1969), the Court removed some state‐created obstacles to obtaining welfare benefits. It held that the constitutionally protected right to interstate travel prohibited states from imposing long residency requirements for welfare eligibility (see Travel, Right to). In Harper v. Virginia State Board of Elections (1966) the Court invalidated state poll taxes that disenfranchised the poor. All of these cases, however, involved rights that the Court labeled “fundamental” (such as voting), and thus the Court did not confront the question whether laws depriving indigents of nonfundamental rights should be subject to strict scrutiny.

In 1970 the Supreme Court put an end to the speculation. In Dandridge v. Williams (1970) plaintiffs challenged a state law that provided for incrementally smaller increases in welfare payments for each child born to a family, with no additional increase granted after four children. The Court refused to apply strict scrutiny to the statute and upheld it as a rational method of conserving state financial resources. The Court has since adhered firmly to the position that poverty alone is not a suspect classification. It has upheld laws that create large financial differentials among school districts depending on the wealth of the district (San Antonio Independent School District v. Rodriguez, 1973), laws that deny public funding to indigent women seeking abortions (Harris v. McRae, 1980), and state failures to provide counsel to indigent defendants beyond one level of appeal (Ross v. Moffit, 1974). All of these laws were subjected only to minimal scrutiny and upheld as rationally related to a legitimate state interest. No heightened scrutiny was applied (see Intermediate Scrutiny).

The Court has remained somewhat sensitive to the plight of the poor in two instances, however. First, where fundamental rights are involved, the Court may still apply heightened scrutiny to policies that deprive the poor of such rights. For example, in Boddie v. Connecticut (1971), the Court invalidated a filing fee for divorce, and in Zablocki v. Redhail (1978), the Court struck down a law that restricted remarriage of those with children to parents who could show that the children would not become a financial burden on the state. Both cases implicated the fundamental right of marriage.

The Court has also indicated that it might be wary of upholding laws that create or perpetuate a permanent underclass. In Plyler v. Doe (1982) the Court invalidated a Texas law that prohibited children of illegal aliens from attending free public schools. Although the Court found neither a suspect classification nor a fundamental right—and purported, therefore, to apply only minimal scrutiny—the law was struck down as a violation of equal protection. The majority opinion by Justice William J. Brennan noted that the law “raised the specter of a permanent caste” of the underclass (pp. 218–219). It is unclear whether the Plyler approach will survive, however. Plyler was decided by a slim 5‐to‐4 majority, and since the case was decided, all the justices in the majority have retired. Their successors have not yet indicated any views on the Plyler approach.

In summary, the Court is generally unsympathetic to any constitutional challenges to laws that classify on the basis of wealth or burden the indigent.

See also Fundamental Rights.

Suzanna Sherry