Balkinization  

Wednesday, February 23, 2005

Court Decides Johnson v. California; Thomas and Scalia Continue to Mystify

JB

Today, in Johnson v. California, the Supreme Court held that California's practice of segregating newly arrived prisoners by race for up to 60 days was subject to strict scrutiny. Justice O'Connor wrote the majority opinion. Justices Scalia and Thomas dissented, arguing that strict scrutiny shouldn't apply in prison settings; instead the Court should use the very relaxed standard of Turner v. Safely. Turner says that prisoner rights can be abridged whenever the regulation is reasonably related to legitimate penological interests. Justice O'Connor argued that Turner does not apply to racial discrimination. She pointed out that under the Turner standard, there would be no obvious limit to how much of a prison could be segregated, as long as prison officials asserted that it might have some benefit and might decrease the risk of racial violence. O'Connor pointed out that Turner doesn't require any inquiry into whether more limited policies or race neutral alternatives would do just as well.

I thought that the Court would subject this policy to strict scrutiny. However, I am mystified about why Thomas and Scalia are dissenting in this case. I had thought that they had strongly principled objections to racial classifications because these classifications fail to respect individual dignity, because they fail to treat individuals as individuals, and because they stigmatize and stereotype people according to their race, even when the classification is made from the purest of motives. I don't happen to agree with their views in the affirmative action cases, but at least I respect a principled stand when I see one. But there is nothing of that principled objection in this case. Instead, it appears that their rhetoric only applies when they are opposing affirmative action policies designed to assist racial minorities. Prisoners, it seems, have no rights which the state is bound to respect. Of course, Thomas has never been interested in prisoner's rights, but one would think that his very strong objections to even "benign" racial classification would count for something here.

In saying that Thomas and Scalia aren't being consistent, I do not mean to suggest that O'Connor is. As Thomas correctly points out, her refusal to defer to prison administrators in Johnson is in tension with her deference to university administrators in Grutter. And there are passages in today's opinion that are, frankly, laughable given what she wrote in Grutter. The point is that I don't really expect doctrinal consistency from O'Connor-- I expect pragmatic case manipulation designed to hit the precise center of current public opinion. Scalia and Thomas, on the other hand, have always struck me as true believers. But cases like this one seem to suggest that they are doing precisely what they accuse liberals of doing-- writing their own personal predilections about policy into constitutional law.

Speaking of liberals, at least Justices Ginsburg, Breyer and Souter have a principle that distinguishes this case from Grutter. It is the antisubordination principle-- racial classifications are suspect because they help perpetuate the subordination of racial groups. Where the majority acts to undo the effects of past subordination, courts can apply somewhat less scrutiny (although not minimal scrutiny) because what the state is doing is not inconsistent with the goal of antisubordination. That explains the Court's deferential attitude toward admissions committees in Grutter. However, when the state uses racial classifications for mere administrative convenience, as in this case, its goals are orthogonal to alleviating social subordination, and the usual rule of strict scrutiny should apply. Obviously, one could object to this line of argument at several places, but on the whole it seems somewhat more principled than what the other Justices are doing.


Comments:

It would be nice to be shocked or even surprised by the disingenuousness of your criticism of Thomas and Scalia here, as if they give no clue why they treat this case differently from Grutter et al. But you are so consistently unfair to them at this point that the surprise is your continued respect as a professor of Constitutional law.

Try reading the dissents, wherein they carefully and persuasively distinguish the prison cases on the basis of precedent. If they are wrong, show where they are wrong. But please, please, don't give the high school sophomore argument that "this looks different from what they said before on the basis of zero reflection, therefore they are hypocrites." No, they expect people like you to read and engage, despite all evidence of your inclination to the contrary.
 

I apologize, for in my haste I treated Thomas's dissent (joined by Scalia) as if it were two, whereas I should simply have treated the single dissent as representing a joint opinion, as it does. The other dissent in the case, from Justice Stevens, takes a distinctly different perspective, of course.

Nevertheless, a cursory review of Justice Thomas's arguments would suggest that there are many obvious ways in which he sees the case differently from Grutter and so forth, and it is frankly dismaying Prof. Balkin pretends that there is no apparent way to distinguish the cases beyond the preferences of the dissenters. The reasons they give may not be persuasive (though I think they are), but Prof. Balkin pretends they don't exist. Sad, sad. sad.
 

T., I must say that I thought I *had* explained why I don't buy Thomas's argument in the opening paragraphs of my post. Thomas's central argument is that the Court should apply Turner v. Safely. But this can't be an appropriate application of Turner v. Safely, because Turner applies a very low level of scrutiny, and then you get O'Connor's parade of horribles. In particular, you wouldn't have to consider race neutral alternatives to race segregation, and you could probably segregate the entire prison population indefinitely. Thomas does not really deal very effectively with this problem.

Note, moreover, that O'Connor does not say, at the end of the day, that the prison regulation is unconstitutional, but that you have to apply strict scrutiny. This is, I think, the correct result, although Justice Stevens may be right that it is so obvious that there are race neutral or less restrictive alternatives to the existing policy that the policy is clearly unconstitutional.

One obvious alternative that comes to mind (and that Justice Stevens mentions) is for prison officials to work just a little bit harder to get sentencing reports that allow for individualized determinations of prisoners before they are transferred. (Under the current policy, individualized determination of dangerousness is not required-- everyone is automatically matched with a cellmate of the same race or ethnic group for the first 60 days.) If the sentencing report indicates gang connections, the prison official could assign a cell mate least likely to provoke violence. In emergencies, or where there is insufficient time to obtain such reports, prison officials could make a decision on a temporary basis pending the receipt of such information. (The current 60 day rule, by contrast, applies whether or not there is an emergency and whether or not sentencing information that would provide an individualized determination is available).

This alternative is race neutral, or at most, uses race in a far less restrictive manner than the current policy, serves important penological objectives, and still gives prison officials wide discretion. Note that Turner does not require prison officials to consider such a policy, but strict scrutiny does. That is why I believe that Thomas is applying the wrong test.
 

I appreciate the clarification, but I don't think your first paragraphs spelled out your own disagreement with Thomas and Scalia, and I don't think that the argument that they are wrong (which is what you offer here) is the same as the argument that they "mystify" or that they fail to offer reasons which distinguish the position they take here from there general opposition to the use of racial classifications. It is the accusation of "mystifying" inconsistency that I objected to in your original post. Indeed, nothing in your original paragraphs suggests that you agreed with O'Connor as against Thomas--you note that you thought this was the direction the court would go and then you move on to the general critique of Thomas's approach to prisoners' rights cases and the inconsistency charge.

I don't think the opinions of Thomas or Scalia are magical or always correct, but I tire of the "gotcha" game played by so many of their critics who think that any apparent inconsistency on their part is evidence that they don't really mean what they say when they appear to lay out (as is part of their project) clear rules for adjudication of various issues.

Here, they read the precedents as precisely not permitting them to engage in the policy analysis and second-guessing that you and O'Connor prefer. I'm not sure who has the better of that argument, but I don't think that the facile characterization that this ("along with other cases") suggests they are just up to what the other justices are up to. Is it not enough to say that the opinion is unconvincing or weak in parts rather than to lay on top of it the accusation of simply asserting their own policy preferences as constitutional principles. That is particularly odd in a case like this where, had the dissenters been in the majority, the holding would have been one of deference to the state officials in determining the policy. This they regard as the best reading of the relevant precedents of the Court, and this is consisten with their general approach of not behaving like a legislature or an administrative agency, which in their view judges are ill-equipped to do.

Thus there is much consistency here in the approach, even if there is a tension with other opinions dealing with race-based classification. Even the most principled judge will find, from time to time, that her own principles come into tension. That does not make of the judge a hypocrite.
 

JB, I'm not sure that it's accurate to say that Thomas is not applying Turner correctly. Although I would advocate for a more rigorous application of Turner across the board (by, for example, limiting analysis under the first prong to the justifications and evidence put forward by the defendant, not any imaginable justification, as traditional rational basis analysis would permit), I don't think there's anything in Turner jurisprudence that says that it doesn't apply to constitutional rights across the board, whether rooted in the Fourteenth Amendment or the First. The majority is indeed begging the question when it says that Turner does not apply in this context because the right claimed is not inconsistent with prison administration, since that question is what Turner is intended to resolve. The parade of horribles that the majority raises would, one hopes, be avoided by (again) a more rigorous application of the second and fourth prongs of Turner, which looks at the availability of alternatives (although, admittedly, is not as strict as a narrowly tailored requirement would be).

All this is to say that while I don't think the Turner test was crafted appropriately (it allows far too much deference to prison officials, for example), I do think that Thomas has some sound arguments about why the Court's precedents require it to be applied here -- or overruled to some extent. The majority did neither.
 

I agree with t. more, at least with respect to his assertion that Thomas's dissent is coherent and principled. What Thomas is worried about here -- and, indeed, what the Court has, until now, worried about -- is courts second-guessing prison administrators and leading to the very real (and very ugly) specter of uncontrolled prison populations. As Thomas points out, because the Court has turned away from it's well-settled Turner precedent here, the burden should be on the majority to explain how this is different from the First Amendment and due process and other constitutional issues that arise in prisons. Honestly, O'Connor doesn't deal with this, and I don't think it's a wild leap to predict that Johnson will lead to the application of strict scrutiny to prison speech regulations.

And the upshot of this, as Thomas warns, is that prisons will argue that prison discipline is a "compelling state interest" -- and courts, anxious not to upset Turner's expectations and meddle in prison administration will certainly agree. (That's indeed what the majority seems to have in mind with their remand here.) This increasing judicial deference to states' assurances that their stated interests are "compelling" is not something that those of us who celebrate the courts' role in defending civil rights should celebrate. Justice Thomas knows this, and that's why his dissent is far from unprincipled.
 

All the Thomas defenders here are kidding themselves. To resolve Thomas's opinion as a required result of Turner (without getting to the fundamental issues that JB talks about in the OP) presupposes that Thomas believes in precedent as a determinative (rather than solely persuasive) factor in deciding constitutional law questions. As we all know, Thomas does not believe in such nonsense, and thus even if you theoretically could find a way to defend his opinion on such grounds, he is still acting as a hypcrite.
 

PS DJ...that doesn't make Thomas's decision here not hypocritical given his decision in Grutter. In fact, your reasoning of his "principled stand" is bizarre in light of Thomas's decision in Grutter.

While I agree someone could write a well reasoned and principled dissent under the grounds provided by Thomas, the fact is that Thomas and Scalia cannot.
 

I can go for months, even years, without defending Scalia & Thomas, but I've never thought that they conceded many rights to prisoners. Summary execution might require strict scrutiny, but other than that ...
 

Dude, Justin, check the hostility at the door. It'd be helpful if you made an argument rather than simply aping Balkin's Grutter-gotcha. I don't think Thomas could have done much more to persuasively explain why a rule deferring to prison administrators makes a lot more sense than the Court's essentially hands-off treatment of university admissions in Grutter. Indeed, I wonder why anyone would have to work hard to make that distinction. It seems self-evident to me.

But allow me to make it even clearer. What you and Balkin seemed to miss in the Thomas dissent is his sharp skepticism that prisoners are entitled to ANY constitutional rights. I don't understand how you missed it--he's pretty clear that he believes the original understanding of the framers is that Bill of Rights doesn't follow citizens into prisons. And, from this, it's clear that, given the right case, Thomas would vote to overrule the line of cases that have recognized prisoners' limited constitutional rights.

Dig this: To Thomas, this is a case about prisons, not about racial discrimination. Full stop.

I didn't want to pile on here, but now I have to agree with t. more: The hatred that people like Justin and Balkin have towards Scalia and Thomas is so deep, it absolutely blinds them.
 

DJ, leaving aside the insults and namecalling, perhaps you yourself need to take a look at Thomas's writings. First of all, his conclusion is that 14th amendment does apply, although a rational basis test would satisfy the 14th amendment here. Second of all, he argues that even under strict scrutiny the plaintiff would win. Neither fits into your poor analysis of his opinion, so, no, I cannot "dig" anything you say.
 

I'm sure no one's reading this thread anymore, but the last comment merits a response.

Justin claims that Thomas's "conclusion is that [the] 14th amendment does apply, although a rational basis test would satisfy the 14th amendment here." This is so. But that doesn't undermine my central point that, in the right case, the originalist Thomas would likely vote to overturn the Court's line of cases that held that the Bill or Rights follows prisoners inside the prison walls. To be sure, Thomas didn't take that position here -- the question presented was whether strict scrutiny or Turner deference applies, not whether the EPC has no application. But it's not surprising that Thomas limited the scope of his opinion. In my reading of Thomas dissents (and, believe me, I've read a lot), he typically does not explain why precedent should be overruled unless the question is squarely presented by the parties. (You might want to brush up on Thomas's writings yourself, Justin.)

As for the Justin's claims that Thomas argues here "that even under strict scrutiny the plaintiff would win": Huh? This is flatout wrong and begs the question of whose analysis is "poor". Here's what Thomas wrote:

"Even under strict scrutiny analysis, 'it is possible, even likely, that prison officials could show that the current policy meets the test.'.... As Johnson concedes, all States have a compelling interest in maintaining order and internal security within their prisons.... Thus the question on remand will be whether the CDC's policy is narrowly tailored to serve California's compelling interest. The other dissent [Stevens] notes the absence of evidence on that question ..., but that is hardly California’s fault [because little discovery was taken on that issue]."

Please tell me where Thomas (here or anywhere else) says that the "plaintiff" (that is, the prisoner Johnson) would win under strict scrutiny. In fact, Thomas doesn't say WHO would win. That's because, as I believe most readers would understand, he thinks the factual record is insufficient to reach that conclusion. (Even so, Thomas suggests that the State may be likely to establish that its segregation policy meets strict scrutiny's means-ends test. This is a prediction, though, not a conclusion.)

My post is too long, but sloppy scholarship and analysis have dogged Clarence Thomas's critics for over ten years now. And when that criticism--like Justin's here--is patently wrong, the record needs to be set straight.
 

I'm sure no one's reading this thread anymore, but the last comment merits a response.

Justin claims that Thomas's "conclusion is that [the] 14th amendment does apply, although a rational basis test would satisfy the 14th amendment here." This is so. But that doesn't undermine my central point that, in the right case, the originalist Thomas would likely vote to overturn the Court's line of cases that held that the Bill or Rights follows prisoners inside the prison walls. To be sure, Thomas didn't take that position here -- the question presented was whether strict scrutiny or Turner deference applies, not whether the EPC has no application. But it's not surprising that Thomas limited the scope of his opinion. In my reading of Thomas dissents (and, believe me, I've read a lot), he typically does not explain why precedent should be overruled unless the question is squarely presented by the parties. (You might want to brush up on Thomas's writings yourself, Justin.)

As for the Justin's claims that Thomas argues here "that even under strict scrutiny the plaintiff would win": Huh? This is flatout wrong and begs the question of whose analysis is "poor". Here's what Thomas wrote:

"Even under strict scrutiny analysis, 'it is possible, even likely, that prison officials could show that the current policy meets the test.'.... As Johnson concedes, all States have a compelling interest in maintaining order and internal security within their prisons.... Thus the question on remand will be whether the CDC's policy is narrowly tailored to serve California's compelling interest. The other dissent [Stevens] notes the absence of evidence on that question ..., but that is hardly California’s fault [because little discovery was taken on that issue]."

Please tell me where Thomas (here or anywhere else) says that the "plaintiff" (that is, the prisoner Johnson) would win under strict scrutiny. In fact, Thomas doesn't say WHO would win. That's because, as I believe most readers would understand, he thinks the factual record is insufficient to reach that conclusion. (Even so, Thomas suggests that the State may be likely to establish that its segregation policy meets strict scrutiny's means-ends test. This is a prediction, though, not a conclusion.)

My post is too long, but sloppy scholarship and analysis have dogged Clarence Thomas's critics for over ten years now. And when that criticism--like Justin's here--is patently wrong, the record needs to be set straight.
 

Is it possible to delete redundant postings? Sorry about that.
 

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