Procedural Animus

36 Pages Posted: 1 May 2019

Date Written: March 29, 2019


In a small set of cases, the Supreme Court has declared that state action motivated by animus toward a politically unpopular group is unconstitutional. Animus was rendered newly relevant by Masterpiece Cakeshop v. Colorado Civil Rights Commission. This Article applies the Court’s animus doctrine, including Masterpiece, to the Prison Litigation Reform Act (PLRA). The PLRA targets prisoners, who, in the context of federal litigation, are politically unpopular — if not despised. The PLRA’s legislative history is replete with hostility for prisoners and their cases. The PLRA codifies this animus by subjecting prisoners’ civil rights actions to unique procedural hurdles. Still, the PLRA’s constitutionality has been assumed.

This Article frames Masterpiece as a case about much more than majoritarian religious beliefs. First, it considers Masterpiece’s doctrinal significance, comparing it to United States Department of Agriculture v. Moreno, Palmore v. Sidoti, Romer v. Evans, and United States v. Windsor. Second, it demonstrates how Masterpiece broadened animus’s reach by relying upon a wider array of animus evidence. Masterpiece found evidence of animus in unlikely sources, such as statements made by individual members of a civil rights commission. Applying Masterpiece, the Article identifies the animus underlying the PLRA, and labels it “procedural animus.” Procedural animus is hostility which hinders an unpopular group’s ability to obtain relief for legal wrongs.

Masterpiece may extend animus beyond the few contexts in which Justice Kennedy deemed it relevant, reaching as far as the PLRA’s punitive procedure. Deploying animus in this fashion is timely: at long last, incarceration is itself suspicious.

Keywords: PLRA, civil rights, animus, equal protection, constitution

Suggested Citation

Macfarlane, Katherine, Procedural Animus (March 29, 2019). Alabama Law Review, Vol. 71, Forthcoming . Available at SSRN:

Katherine Macfarlane (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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