Scott Lemieux at Lawyers, Guns and Money has an interesting (and to me, convincing) case against Justices Thomas and Scalia, regarding California’s unofficial policy of bunking new inmates by race for the first 60 days. The court found, in a 5-3 decision, that the practice must stop unless it can meet the “strict scrutiny” standard. “As a result, the 9th U.S. Circuit Court of Appeals must now scrutinize the 25-year-old policy for hard evidence that it is necessary and works — a burden that will be hard to meet.” Thomas and Scalia dissented.
Says Lemieux:
The big problem is that it is egregiously inconsistent with (Thomas’s) previous reasoning in affirmative action cases, in which both he and Scalia (who joined Thomas’s dissent here) have argued that the “Constitution” is color-blind, with no exceptions.
Here’s Thomas in Grutter v. Bollinger. If segregation can, in extreme cases, be defensible, then surely the Court should defer to university officials (as well as the United State military and many Fortune 500 corporations) who deem that simply considering race as one factor among many accomplishes crucial goals, right? The answer, of course, is “no”…
Not only do Thomas and Scalia find that the “color-blind” Constitution permits state-mandated racial segregation, they don’t even believe the policy should be subject to strict scrutiny. “The Constitution is color-blind….unless you’re a prisoner, in which case racial classifications don’t even require heightened scrutiny” is a risibly untenable position.
Personally, I’m more than a little uncomfortable with racial segregation of prisoners, and it’s not obvious to me how the policy would reduce violence. However, I’m willing to accept that California’s prison officials know more than I do, and would have been willing to give them leeway; I’m making the assumption that the prison system showed evidence of the policy’s effectiveness to the circuit court. Luckily, I’m not philosophically wedded to colorblindness as an absolute good.
{ 22 comments }
SamChevre 02.25.05 at 5:52 pm
I think Lemieux’ critique is considerably mistaken. The Constitutional standards applying to the criminal justice system are different than those elsewhere (police, courts, and prisons have different rules in a host af areas, not just race). And to the extent that it is necessary/useful, consideration of race has always been permitted in that system–suspects may be described by race, juries may be screened by race, and prisoners may be segregated by race.
Thus, I don’t see it as inconsistent for Thomas and Scalia to point to the long line of cases giving prison administrators greater leeway in administration than other agencies as justification for a hands-off policy toward California, while holding than agencies outside the criminal justice system are bound by a stricter standard.
Joe O 02.25.05 at 5:53 pm
The government does not adequately control its prisons. Gang violence and rape are big problems. California was tring to avoid the situation where a prison has racially segragated gangs and where new prisoners are victimised on the basis of race. If limited racial segragation does reduce these problems then it may be justified.
Or maybe not. It is a factual question. If there really isn’t any other way to avoid such problems the practice may pass the “strict scrutiney” test. I would be concerned that the ninth circuit finds that there is some other way to avoid the problem which isn’t implemented.
Chris 02.25.05 at 6:24 pm
The fact is that there were two distinct lines of precedent that happened to intersect in this case and pointed in different directions. On one hand, the Court has said that all racial classifications are subject to strict scrutiny. On the other hand, it has said that a somewhat lower standard of scrutiny should be used to evaluate pretty much all constitutional claims by prisoners.
Thus, when racial classifications meet prisoner claims, something had to give. In the majority’s opinion the racial-classification cases trump the prisoners’-rights cases. In the Thomas/Scalia dissent, vice-versa.
Neither side, then, is a paragon of consistency. Jack Balkin has a post saying as much. And see the one from Rick Pildes right above Prof. Balkin’s.
bull 02.25.05 at 6:25 pm
Lemieux quotes various Thomas/Scalia opinions in support of his proposition that their recent jail dissent is inconsistent with their opposition to taking race into account. There is no inconsistency. The quoted cases state that the government should not provide one race a preference over another race. It’s hard to see how segregating all prisoners for their initial 60 days in jail in order to protect all of them from being murdered provides any race any preferences.
Functional 02.25.05 at 6:27 pm
I disagree completely. Everyone admits that prisoners are a special case, right? They obviously don’t have exactly the same constitutional rights as everyone else — especially the right to travel. (If they DID have the same rights, the state couldn’t lock them up in the first place.)
That’s why in the very first paragraph of Thomas’s dissent — a passage that is hard to miss — Thomas points out that the Court has held that “the [relaxed] standard of review we adopted in Turner [v. Safley, 482 U.S. 78 (1987),] applies to all circumstances in which the needs of prison administration implicate constitutional rights.â€
An intellectually honest assessment of Thomas’s dissent would not conveniently forget to mention the whole freakin’ basis for Thomas’s opinion: That prisoners are supposed to have lesser scrutiny applied to their constitutional rights, and that the majority doesn’t explain why this case is the first-ever exception to the rule.
As for the affirmative action case, guess what: Thomas addressed that point too. (Again, need I add, an intellectually honest assessment would try to refute Thomas’s reasoning rather than ignoring it.)
Here’s what Thomas said:
Easy to understand, no? Two reasons here: (1) Supreme Court has much less institutional knowledge of prisons as compared to universities, and therefore much less basis for second-guessing the actions of prison administrators; (2) If the Supreme Court guesses wrong as to how to run prisons, people might die in gang warfare, something that won’t happen if the Court guesses wrong as to universities.
The real inconsistency is with the moderates/liberals who voted to uphold affirmative action in Grutter. They believe: 1) It’s ok for the state to discriminate on racial grounds in education if the educators claim that there is some sort of benefit from admitting (though not graduating) a class that has one particular mix of skin colors rather than a slightly different mix; but 2) It’s not ok for the state to separate prisoners for a brief and limited time period in order to prevent murder and other racially-motivated violence that tends to break out otherwise.
tad brennan 02.25.05 at 6:51 pm
Worth taking a look at Jack Balkin’s reaction over at:
http://balkin.blogspot.com/
He also quotes from another law prof.
RS 02.25.05 at 8:33 pm
http://news.bbc.co.uk/1/hi/uk/4192309.stm
wavemaker 02.26.05 at 2:03 am
BRAVO, FUNCTIONAL!!!!!!! A potently stated analysis.
m. 02.26.05 at 3:04 am
Yes, but the earlier commentors about Thomas’s jurisprudence seem to gloss over one important fact: it’s not that Thomas believes prisoners have fewer constitutional rights than the rest of us (pretty unproblematic)–he believes prisoners have no rights at all. Which flies in the face of earlier SCt jurisprudence and, oh yes, opens up prisoners to pretty horrible treatment with no recourse to the courts…
kasei 02.26.05 at 3:28 am
Although prisoners by definition have fewer rights, surely any just legal system would offer as rigorous scrutiny of those rights they do have as it would to ordinary citizens? I believe that should hold true of educational systems too – it is inconsistent on both sides to say that prisons/colleges should not be subject to high standards of accountability but that everything else should. All this debate seems to do so far is protect rightwing (law&order) interest groups on the one hand, and leftwing ones(the colleges) on the other. How tiresome.
Ajax Bucky 02.26.05 at 5:10 am
Rights? Do you academics have any idea how much racial antipathy there is among those prisoners already? Do you have the slightest idea what conditions in American prisons have degenerated into in the last 20 years? From a baseline that was already dehumanizing and sadistically punitive.
It’s like the smirky way whitebread pussies talk about anal rape as one of the downsides of getting sent up. The reality of an 18 year old kid getting violently sexually assaulted by grown men is another story, though. Advocating that, even tacitly, shows cowardice for what it is. Talking about the racial segregation of new prisoners without first declaring the snake pits of modern prisons to be an outrage is just more effete cowardice. Unless you don’t know anything about what modern prisons are like, in which case you haven’t any business talking about them at all.
Gangs in prison are almost entirely racially configured, and gangs are the reality of prison life. Trying to apply abstract concepts like segregation and integration to the festering abscess of the increasingly privatized and incompetently-run American criminal justice system is beyond your reach entirely. This discussion is absurd, and given the human misery it glosses over to make cheap points of ideology, disgustingly heartless.
Scott Lemieux 02.26.05 at 6:30 am
1)Nobody is denying that there is precedent for denying prisoners fundamental rights. The problem is that this line of precdents plainly contradicts the claims of Scalia and Thomas that the Constitution, without exception, does not permit racial classifications. This contradiction did not resolve itself mechanically. (Since they continue to believe that the affirmative action precedents are wrong, they cannot say that they are bound by the previous prison cases.)
2)Yes, indeed, O’Connor is also being inconsistent. (The Balkin post above does a good job showing this.) I didn’t bother to mention this since nobody actually claims that O’Connor has a principled jurisprudence anyway, and I see little reason to point out the obvious. Contrary to functional’s claim, however, there’s no inconsistency with the rest of the justices. Souter, Ginsburg et al. have consistently held that racial classifications in an amelotrarive context–such as affirmative action–are *not* comparable to racial classifications that upheld segregation. Nothing they said in this case contradicts this previous position. Thomas’ dissent is, however, howlingly inconsistent with the proposition that the Constitution is “color-blind.” (And as Ted suggests, this isn’t so much an attack on Thomas’ opinion in this case as further evidence that their previous argument is obviously wrong.) The fact that a previous line of cases dealing with prisons *also* rejected the idea that the Constitution is color-blind in all cases hardly lessens the contradiction.
3)I would very much like to see evidence backing up Thomas’ claim that the judiciary has less ability to supervise prison administration than university administration. I would, first of all, like to suggest that Thomas knows nothing at all about the latter. Secondly, prison reform has acutually been a case where judicial-led reform has been quit productive in many cases (see Feeley and Rubin’s “Judicial Policy-Making and the Modern State.”) At any rate, it’s not that I didn’t notice Thomas’ argument about this; it’s that unsubstatntiated assertions about judicial capacity has nothing to do with Thomas’ previous claim that the COnstitution was color-blind in all cases.
you're killing me 02.26.05 at 11:03 am
If proof were needed that academics are wankers, this discussion is it. Maybe you could go and discuss the prisoners’ construction of reality with them?
Functional 02.26.05 at 5:28 pm
1)Nobody is denying that there is precedent for denying prisoners fundamental rights. The problem is that this line of precdents plainly contradicts the claims of Scalia and Thomas that the Constitution, without exception, does not permit racial classifications.
Wrong. They do not say “without exception,” and they certainly have never said that Equal Protection (any more than any other constitutional right) applies with the same force to prisoners. There’s no contradiction here. You might as well pretend to have uncovered a “contradiction” in the fact that all the Justices support the First Amendment, yet they have mysteriously agreed that the First Amendment applies with less force to prisoners under Turner v. Safley.
This contradiction did not resolve itself mechanically. (Since they continue to believe that the affirmative action precedents are wrong, they cannot say that they are bound by the previous prison cases.)
Why, yes, they most certainly can. You seem to assume that if Scalia/Thomas disagree with affirmative action precedents, that somehow means that they are being inconsistent if they ever follow precedent in any context. This is an idiotic assumption. Even Thomas, who is much more suspicious of stare decisis than Scalia, is often seen following precedents. There is nothing even conceivably inconsistent about this.
I would very much like to see evidence backing up Thomas’ claim that the judiciary has less ability to supervise prison administration than university administration.
At the very least, they obviously have more personal experience with education. No Supreme Court Justice has spent time in prison. But all of them spent at least 19 years in school, including college and law school. They can easily recall, for example, whether their classes were more educational if X% of their classmates had a particular skin hue as opposed to X-minus-3-%, as Michigan purported to believe.
Also I note that you don’t even pretend to disagree with Thomas’s point that second-guessing wrongly as to prisons can lead to deadly prison riots or gang warfare, a much more serious risk than second-guessing universities.
Matt Weiner 02.26.05 at 5:38 pm
Ajax bucky–Isn’t that an argument that the policy would pass strict scrutiny?
Justin 02.27.05 at 1:16 am
“Wrong. They do not say “without exception,†and they certainly have never said that Equal Protection (any more than any other constitutional right) applies with the same force to prisoners. There’s no contradiction here. You might as well pretend to have uncovered a “contradiction†in the fact that all the Justices support the First Amendment, yet they have mysteriously agreed that the First Amendment applies with less force to prisoners under Turner v. Safley.”
No, Scott is right and you are wrong. Go read the dissent in Grutter again. The fact is that Thomas’s argument in Grutter leaves no room for any situation where a person who gets rights at all (and Thomas certainly believes that prisoners get rights at all, as he believes the state still has to meet a lower burden, which he believes the state meets) can treat race as a factor and pass (the only possibility I can find here is some sort of “seperate but equal” agument, but that was overruled in Brown).
“Why, yes, they most certainly can. You seem to assume that if Scalia/Thomas disagree with affirmative action precedents, that somehow means that they are being inconsistent if they ever follow precedent in any context. This is an idiotic assumption. Even Thomas, who is much more suspicious of stare decisis than Scalia, is often seen following precedents. There is nothing even conceivably inconsistent about this.”
Idiots should NEVER call other people idiotic. Thomas does not believe in stare decisis AT ALL. He will follow precedent because it is a) perusasive or b) particularly efficient or neccesary given the practical circumstances. Neither situation helps you here. Scalia, btw, does accept the principle of stare decisis, and you do yourself and them poor showings by conflating the two justices.
At the very least, they obviously have more personal experience with education. No Supreme Court Justice has spent time in prison.
“At the very least, they obviously have more personal experience with education. No Supreme Court Justice has spent time in prison. But all of them spent at least 19 years in school, including college and law school. They can easily recall, for example, whether their classes were more educational if X% of their classmates had a particular skin hue as opposed to X-minus-3-%, as Michigan purported to believe.
Also I note that you don’t even pretend to disagree with Thomas’s point that second-guessing wrongly as to prisons can lead to deadly prison riots or gang warfare, a much more serious risk than second-guessing universities.”
WOW. You take a premise that I can actually agree with (there are significant problems with judicial review of prison management, though none that should be at issue in this case) and you butcher it with your incompetent analysis. Though justices have spent more of their past in schools than in prisons, surely their past experience would be a terrible reason to justify management (for one, most justices have spent little to no time doing a great deal of what they make decisions about; for another, these people hardly went through the typical experience during their education, and management-by-outlier is a great recipe for failure); furthermore, while screwing up 14th amendment rights could lead to riots, the combined risk of social harm times the amount of people within the system for prisons is far less than the social cost of screwing up the school system, especcially as it impacts low income minorities (who, if you screw up the school system, will continue to land in disproportionate numbers in said prison).
On the other hand, Scott and I actually have legal training, and with a little bit of prayer, perhaps your inability to reason with any sense of logic or understanding of coherent jurisprudence may be due to a lack of education rather than sheer incompetence. One can hope.
Functional 02.27.05 at 3:49 am
Nice try, but a bit heavier on bragging about your supposed credentials than on actual logic.
[Thomas] will follow precedent because it is a) perusasive or b) particularly efficient or neccesary given the practical circumstances. Neither situation helps you here.
Says who? Thomas obviously thinks that Turner v. Safley is both persuasive and practical in the circumstances. Hence, he wants to keep following Turner v. Safley. What’s to dispute about that?
And like I said, this is not a “contradiction” in any sense whatsoever, any more than it’s a contradiction when the Justices apply Turner v. Safley as to constitutional rights (free speech, free exercise, etc.) that they vigorously enforce in every other social context. You don’t and can’t refute that point, because it’s true. It’s simply not a contradiction for any given Justice to say, “Oh, how wonderful free exercise of religion is,” but then to say, “But in prisons, Turner v. Safley still controls.”
Scalia, btw, does accept the principle of stare decisis, and you do yourself and them poor showings by conflating the two justices.
Who is conflating? I already said that Thomas “is much more suspicious of stare decisis than Scalia.” Perhaps you weren’t able to read my entire post. It was awfully long, I know.
Though justices have spent more of their past in schools than in prisons, surely their past experience would be a terrible reason to justify management
No one is trying to “justify management” in and of itself. The point, however, is that if Justices feel confident enough to say, “Here’s how to house inmates in a prison,” they should sure as hell feel confident enough to say, “Educators should treat people equally.”
furthermore, while screwing up 14th amendment rights could lead to riots, the combined risk of social harm times the amount of people within the system for prisons is far less than the social cost of screwing up the school system, especcially [sic] as it impacts low income minorities (who, if you screw up the school system, will continue to land in disproportionate numbers in said prison).
So if the University of Michigan stops giving people a enormous thumb on the scale for claiming to have a particular skin color, that equates to sending minorities in disproportionate numbers to prison? Those two things just don’t have anything to do with each other, and there is no plausible causal relation whatsoever. If the middle-range black student doesn’t get into Michigan, he might go to Michigan State, NOT to prison. “Gee, if a few elite universities start treating people equally, all these black students will give up on education completely, turn to a life of crime, and go to prison instead.” What racist nonsense.
scottynx 02.27.05 at 2:37 pm
Racially integrating prisons will (in the REAL world we ACTUALLY live in) increase violence and brutality inflicted on prisoners.
What abstract ideal (even if its enshrined in law) is worth subjecting human beings to unneccesary misery and harm?
Brian Weatherson 02.28.05 at 6:40 pm
Will some of the commentators here take the trouble to figure out what the Supreme Court decided before criticising them for it? They didn’t overturn the segregation policy – they decided on a legal question about the burden of proof the state must meet in defending it in lower courts. To be sure they set the state a high standard, but if the policy is as necessary in the REAL world (as opposed to the real world?) as some claim, it will be upheld at the lower courts. (Which is what Matt said above, but no one seems to have paid attention.)
What abstract ideal (even if its enshrined in law) is worth subjecting human beings to unneccesary misery and harm?
I take it you think fighting wars for democracy is a bad idea. Or perhaps ideals like abolishing slavery. I mean I don’t have any strong opinions on whether prisons should be segregated or not (though I’m very suspicious of claims that a system is separate-but-equal) but some ideals are worth taking risks for. Is this one of them? I’d need to know a _lot_ more about what California prisons are like before passing judgment – hopefully the lower courts will do a decent job here.
Mark Kleiman 03.01.05 at 1:54 am
There’s a way of preventing cellmate-on-cellmate assault and rape without making racial distinctions in cellmate assignment: abolish double-celling. Anyone who supports locking prisoners up together supports rape. Making the pairs inter-racial makes things worse, but the root of evil is shared cells.
Ajax Bucky 03.01.05 at 10:46 am
Matt Weiner-
“Isn’t that an argument that…”
Yeah, in the framework of the discussion, which is egregiously dry about its subject considering the hellish misery at its core.
In the immediate environmentof some prisons racial separation is probably necessary to prevent violent attacks. But racism in prisons is not the problem. It’s a symptom – one that’s easier to confront than the disease.
Prisons are a manifestation of the morals of the culture. The culture’s morally schizophrenic and its arbiters are sadists.
Any argument from moral principle that approaches contemporary American prison conditions with anything less than vehement outrage is derelict.
Functional 03.02.05 at 5:18 pm
What abstract ideal (even if its enshrined in law) is worth subjecting human beings to unneccesary misery and harm?
I take it you think fighting wars for democracy is a bad idea. Or perhaps ideals like abolishing slavery.
Fighting a war for democracy might be a good idea IF the people get to experience democracy at the end of the day. Freeing slaves would be a good idea if the slaves get to enjoy their freedom. And trumpeting racial equality in prison cell assignment might be a good thing if it actually benefited anyone whatsoever.
BUT: Fighting a war for democracy would indeed be a bad idea if democracy didn’t in fact benefit anyone whatsoever in the given situation. Abolishing slavery would be a bad idea if, in the given situation (say Sudan), the slave-owners would react by killing all the slaves.
In other words, it is a bad idea to strike a lofty pose as serving an abstract principle, when in fact you are making things worse for everyone involved. That might be the case as to California prisons — “racial equality” might make everyone worse off if it simply leads to more gang violence, etc.
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