In the 1990 case of Kay v. Ehrler, the U.S. Supreme Court unanimously ruled that attorneys who represent themselves in court are not entitled to attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976. The plaintiff, a lawyer named Jonathon Kay, had represented himself in a successful civil rights lawsuit and then sought to collect attorney’s fees for his work on his own behalf. However, the Court rejected this claim stating that one reason Congress allowed prevailing parties to recover fees was to enable potential plaintiffs to obtain legal representation even if they could not afford it initially; self-representation would defeat this purpose as there is no need for financial assistance from an external source when representing oneself. Additionally, Justice Scalia noted that awarding such fees might encourage lawyers to litigate frivolously or excessively since they would be paid either way.

In the dissenting opinion for Kay v. Ehrler, Justice Blackmun argued that the majority's decision was inconsistent with both precedent and legislative intent. He pointed out that previous rulings had established a broad interpretation of attorney fee-shifting statutes, which were designed to encourage litigation in order to enforce civil rights laws. The majority's ruling contradicted this by denying fees to pro se litigants who are also attorneys on the grounds they did not "incur" any costs because they represented themselves. However, Blackmun contended that these litigants do incur opportunity costs when they choose to represent themselves instead of taking on other paying clients. Furthermore, he noted that Congress intended for these statutes to incentivize enforcement of civil rights laws regardless of whether plaintiffs hired outside counsel or represented themselves as long as they were qualified attorneys capable of providing competent representation.