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.