dissenting.
I respectfully dissent. Regardless of whether we review this case under a strict scrutiny or rational basis standard, it is my belief that these PLRA provisions are unconstitutional. No one disputes that access to the courts is a fundamental right and that prisoners must have “ ‘a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts.’ ” Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)). Yet, the majority effectively holds today that court access for some is more fundamental than court access for others.
The parade of horribles is not hard to imagine and prisoners are now faced with impossible choices: choosing, for example, between spending money to bring a lawsuit after being brutalized or sending money home to a child; making co-payments for needed medical care or suing to protect one’s rights. The problems with these provisions are endless; but in upholding the constitutionally of these provisions, the majority, as well as many other circuit courts, have determined that prisoners, like non-prisoners, must make economic choices before filing lawsuits. In my judgment, this argument is flawed because non-prisoners do not have to make such stark choices. Non-prisoners who cannot afford filing fees may proceed IFP. While prisoners, who also possess a fundamental right to court access, do not have , the same right to proceed IFP.
*821Courts have an obligation to protect minority interests when the Constitution is violated by majoritarian will. I am deeply troubled when constitutional rights are trampled in the name of political expediency, and prisoners are certainly an easy political target. What particularly concerns me about today’s decision is that it will have little, if any, effect in terms of curbing frivolous litigation. It may, however, prevent important claims from being pursued in federal court for no meaningful reason:
Although it is true that the number of suits brought by prisoners has increased, there is no indication that the increase has significantly out-paced the increase in the number of people incarcerated in this country nor have the reasons for the increase in claims been established.... A list of reasons for any increase in the number of complaints over a simple increase in the number of prisoners would likely include the high incidence of prison overcrowding, a lack of carefully trained correctional officers, and inadequate and frequently unfair internal grievance procedures.
Lyon v. Krol, 127 F.3d 763, 766 & n. 6 (Heaney, J., dissenting).
In the final analysis, “the degree of civilization in a society is revealed by entering its prisons.” F. Dostoyevsky, The House of the Dead 76 (C. Garnett trans., 1957). Problems within American prisons are well documented. Rather than allow further entrance and examination of prison life, however, today’s decision has the potential to prevent important claims from being adjudicated simply because of a prisoner’s economic status. It is for this reason, and for the reasons stated above, that I respectfully dissent.