The New American Caste System: The Supreme Court and Discrimination Among Civil Rights Plaintiffs

Abstract:     
Fifteen percent of the decisions issued by the Supreme Court during its 1996-97 Term centered around section 1983, a federal statute that provides civil rights plaintiffs a procedural mechanism for vindicating their federally protected rights, including those enshrined in the Constitution. In this article, first published in the Michigan Journal of Law Reform (and under my previous last name, Koehn), I argue that the Court's decisions from its 1996-97 Term reflect a continuation of the alarming trend permeating section 1983 cases - a movement to decrease the scope of section 1983, regardless of the impact on constitutional rights. The Supreme Court appears to be creating a hierarchy both of constitutional rights and of plaintiffs: free speech and takings claims are favored at the top of the heap, while prisoner civil rights actions and suits against police officers are disfavored at the bottom of the heap. Using the Court's decisions from the 1996-97 Term as illustrations, I conclude that they raise a troubling concern that, whether intentionally or unintentionally, the Supreme Court is creating a system in which prisoners, Indians, and persons suing police departments are not entitled to full constitutional protection.

Number of Pages in PDF File: 56

Keywords: Section 1983, civil rights, constitution, discrimination

JEL Classification: K40

Accepted Paper Series