History of § 1983

Finally had a chance to read Medina v. Planned Parenthood, holding that Medicaid's free-choice-of-provider provision is not enforceable through a § 1983 action. The upshot is that Red states can block Planned Parenthood from Medicaid funds.

Justice Thomas writes a concurrence arguing that § 1983 has expanded beyond its intended use, especially given the statute's limited use in its early days (and generally pre-Monroe in 1961). Justice Jackson dissents (with Sotomayor and Kagan); she responds to the early-history point by mentioning the difficulties Black plaintiffs faced: physical threats of pursuing litigation, difficulty of finding a lawyer, racist juries, and problematic enforcement mechanisms.

It seems to me the better explanation is the state of constitutional law in the late 19th and early 20th centuries--the Constitution did not secure "rights, privileges, and immunities" to individuals, so there was no point in suing. Plessy in 1896 means most discriminatory policies were constitutionally valid. Slaughterhouse in 1873 rejected incorporation, meaning a state actor could not deprive a person of an RPI secured by the Bill of Rights. Thus, except for Lochnerian substantive due process, no one could bring constitutional claims against state officials; there was no reason to bother.

This suggests one theme of October Term 2024: Limiting public-law litigation by limiting the procedural devices through which that litigation occurs. We can situate Medina with CASA (obviously) and Lackey (preliminary injunctions do not make plaintiffs prevailing parties for attorney's fees). Some cases did go the other way, such as Gutierrez (allowing claims challenging DNA testing) and Williams (rejecting application of state-law exhaustion requirement to § 1983 claim in state court). Worth further thought.