Prison v. College: The Supremes Dig Themselves Into A Deeper Hole
Unfortunately, the Supremes have proved themselves incapable of, among other things, following the common sense advice, "When you're in a hole, stop digging."
By a 5–3 vote in Johnson v. California they stopped just shy of ruling unconstitutional California's policy, approved by the 9th Circuit, of segregating new prisoners by race in order to prevent violence. In so doing they did what some of us thought was impossible, i.e., digging their racial jurisprudence into an even deeper hole of incoherence.
I expect to have something further to say once I have had time to digest the opinions, but a quick skimming of them and several articles (the New York Times analysis by Linda Greenhouse here; the Los Angeles Times here) leaves me struck (dumbstruck would be overstating it, I guess) that Justice Sandra Day O'Connor, who wrote the majority opinion and who could not have been more deferential to deans and generals and corporate moguls and their stated need to classify by race in order to produce the intangible goods of "diversity," had no use whatsoever for the assertions of California prison officials that their policy was absolutely essential in order to prevent violence. It may be worth adding here that the racial classification involved in preferential admissions is permanent -- some students are rejected for admission because of their race -- while the prison segregation policy is temporary, for new prisoners only.
And on the other side, Justices Thomas, who wrote a long dissent joined by Justice Scalia, who opposed deference to college administrators, was scathing in his criticism of the Court's refusal to defer to prison officials. I'm sure I'll have more to say about Thomas after reading his dissent more carefully.
Meanwhile, Justice Ginsburg joined O'Connor's opinion but wrote separately (joined by Breyer and Souter) to affirm that although California's racial classification policy was bad, not all racial classification is invidious; the racial classifications of which she approves are just fine.
What a mess.
UPDATE [26 Feb. 12:45AM]
Now that I've had a bit of time to reflect on these opinions, and sleep on them, it has now become clear that they are indeed a mess. Here are some additional thoughts.
First, it should be noted that, strictly speaking, O'Connor's majority opinion decided only that the California prison policy was subject to "strict scrutiny," and it remanded the case to the Ninth Circuit rather than flatly declaring the policy unconstitutional (a result advocated by Justice Stevens in his dissent). Justice Thomas's dissent, in turn, was animated by his long-standing belief, articulated in many cases, that constitutional protections are severely restricted, where they apply at all, inside prison walls. His belief in deference to prison officials (and in the long line of precedent supporting deference to prison officials) was the focus of his concern, not that the issue in question involved racial classifications. His opinion would doubtless have been the same if the issue had instead concerned, say, First Amendment issues of speech or religion.
Indeed, a likely outcome of this case is that prison officials, who have now been put on notice that must make a compelling interest argument, will successfully do so. But if this should be the result, Justice O'Connor will have, once again, significantly weakened civil rights protections by weakening the protection to civil rights offered by "strict scrutiny."
To see why, note once again Yale law professor Peter Schuck's devastating critique of O'Connor's Grutter opinion, especially this, which I quoted earlier here:
Strict scrutiny is supposed to be, well, strict. Its raison d’etre is to be rigorous, skeptical, and demanding enough to challenge the government’s premises, flush out its true motives, and ensure a very tight congruence of evidence, legal categories, and policy justifications. Strict scrutiny is employed, of course, when there are especially good reasons to think that, as with racial classifications, the government may be playing with fire around highly combustible materials....Even after a more thorough reading and some reflection, I still find it striking that Justice O'Connor believes prison officials claiming that racial classification leading to brief periods of racial separation are essential to prevent violence are due less deference than college officials claiming that racial classifications leading to the permanent exclusion of some applicants are necessary to promote "diversity." (Come to think of it, O'Connor could have been more consistent if she had ruled that the prison policy, by separating new prisoners on the basis of race and ethnicity, deprived them, and the prison system itself, of the benefit of "diversity.")Justice O’Connor’s strict scrutiny has all the strictness of an indulgent mother who gives her affable son the keys to the family car without questioning him about his drinking. When the father warns that the youth has gotten drunk before and harmed some bystanders, she replies, “Oh, he’s a good boy, and anyway he says he’s only going to the library.” In this spirit, O’Connor accepts the Michigan law school’s assurances that she needn’t worry, while shrugging off the hard questions posed by the dissenters — a kind of good-natured “Oh, don’t mind dad; he’s just being crabby” response.
Yale law professor Jack Balkin is also struck by the inconsistency of the opinions, but, for an interesting reason we'll see in just a moment, he comes down hardest on Thomas and Scalia:
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.Alas, Prof. Balkin has forgotten the current mantra: affirmative action, at least as practiced on campuses, is not "designed to assist racial minorities." It is designed to give everyone, but especially those who are not "minorities," the benefit of the "diversity" that the "minorities" are asserted to bring inexorably with them wherever they go.
Balkin would have been harder on O'Connor's inconsistency, but he never expects her to be consistent.
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.Forget "doctrinal consistency." O'Connor can't even be consistent with O'Connor's pragmatic calculations.
Balkin does, however, find principle here in the position taken by Justice Ginsburg:
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.There he goes again. Balkin once again treats preferential admissions as "acts to undo the effects of past subordination," even though the Court has specifically ruled out that justification.
I hesitate to be dismissive of an eminent Yale law professor, but this "antisubordination principle" is a bit too malleable for me. It approves good discrimination, and bars bad discrimination. But entirely aside from the principle's appeal (or lack of it), does it have any authority other than the support of a few Supreme Court justices and law professors? The Constitution requires "equal protection"; on what basis can that requirement be construed to allow unequal treatment if the goal is to promote "anti-subordination"?
Here's how Justice Ginsburg herself states this principle in her concurrence (citations omitted):
I write separately to express again my conviction that the same standard of review ought not control judicial inspection of every official race classification. As I stated most recently in Gratz v. Bollinger ... : “Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.”Actions designed ... measures taken. What Ginsburg (and her supporters such as Balkin) seem to be saying is that there is something like a good faith exception to the rule against racial discrimination. If the discriminator's purpose is to extirpate the aftereffects of discrimination, then it's o.k. to discriminate.
Of course that discrimination itself creates aftereffects, but never mind.
Balkinian/Ginsburgian liberals are uncomfortable with clear rules based on firm principles. Thus they look at the principle (and the 1964 Civil Rights Act derived from it, legislation they heartily supported at the time) that every individual should be treated without regard to race; they note, correctly, that that principle and its legislative progeny derive in large part from a recognition racial discrimination was intended to and did in fact harm minorities; and they conclude therefore that racial discrimination that is intended to benefit minorities -- or that they believe will benefit minorities, whatever the intent -- isn't really racial discrimination. With the advantage of their hindsight and incontestable (to themselves) high moral values, they, now, would have articulated the principle and written the legislation in a different manner. But since that opportunity is no longer available, they prevail upon judges to rule as though the principle and the legislation had been written the way they now prefer. And if, like Justice Ginsburg, they are a judge, they do attempt to rule that way.
Say What?
All I can say is that they should have had Abbott and Costello write the opinion. It would have been much easier to understand.
Posted by: Richard Nieporent | February 24, 2005 5:44 PM
I'm writing for a different reason than the post, but it was just simple to write it here. I haven't been following your blog for too long, but I have hardly seen anything regarding age discrimination.
by coincidence, today, on my blog, I made a small comment on how serious a problem this is and I certainly would like to see a blog that decided to cover it more than randomly.
Posted by: Alessandra | February 24, 2005 8:57 PM
For the record, Thomas seems to be aware of the very same hypocrisy you are pointing to. This is what he wrote:
"The majority contends that the Court [has] put the burden on state actors to demonstrate that their race-based policies are justified, and "[has] refused to defer to state officials' judgments on race in other areas where those officials traditionally exercise substantial discretion." Yet two Terms ago, in upholding the University of Michigan Law Schools affirmative-action program, this Court deferred to the judgment by the law schools faculty and administrators on their need for diversity in the student body... Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones. The potential consequences of second-guessing the judgments of prison administrators are also much more severe."
Remember when Harry Reid said that this man writes like an eighth-grader?
DOm
Posted by: Dom | February 25, 2005 8:58 AM
I don't think this opinion is illogical in comparison to Justice O'Connor's reasoning in the Michigan cases.
The people she defers to--administrators at so-called elite law schools and executives in large corporations--are people like herself and deserve deference. People who run prisons tend not to be graduates of Ivy League-type schools. Some of them may not even have college degrees.
That sort of person can't really be trusted to know what's best and needs the guidance of social betters.
Posted by: Alex Bensky | February 25, 2005 10:03 AM
"Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones."
The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities. Here its just pure administrative ease.
Posted by: actus | February 25, 2005 10:20 AM
actus,
The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities.
Oh, but that's not so, actus. At least, the stated rationale for affirmative action in higher education is to improve the lot of the majority, by supplying it with "diversity." Whether the administrators believe sincerely in this rationale is open to question, but that's the ground on which the Michigan cases were fought.
Here it's just pure administrative ease.
I'm not sure about that, either, unless it be counted an aspect of "administrative ease" to minimize the number of violent altercations between new prisoners. I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which.
Posted by: Michelle Dulak Thomson | February 25, 2005 12:29 PM
The difference is that in the University setting the administrator is acting not out of administrative ease but out of an impetus to improve the lot of the minorities.
The white man's burden can be so difficult. right actus?
Posted by: Richard Nieporent | February 25, 2005 12:44 PM
actus,
if you take the prison officials at their word that they're acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?
It also seems not such a stretch to say this practice does improve the lot of minorities, at least those in the penal system. Since a common complaint regarding America's prison system is the over-representation of minorities compared to their percentages in overall society, any practice that benefits ALL prisoners should benefit them even more.
Posted by: Scott | February 25, 2005 1:30 PM
Thomas, again:
"The potential consequences of second-guessing the judgments of prison administrators are also much more severe."
Nothing here about administrative ease. He obvious was concerned about violence.
Dom
Posted by: Dom | February 25, 2005 3:22 PM
"At least, the stated rationale for affirmative action in higher education is to improve the lot of the majority, by supplying it with "diversity.""
Fine then. Its still not administrative ease.
"I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which."
Thats the "ease." Sort them out quicker.
"if you take the prison officials at their word that they're acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?"
Sure. There are other, more expensive (less ease) ways of achieving that goal.
But I just found out that Thomas and Scalia didn't apply strict scrutiny. Odd. Doesn't seem consistent with their Michigan opinions.
Posted by: actus | February 25, 2005 4:03 PM
actus,
"I had understood that the reason for the policy was to help keep members of rival racially-based gangs separated until the prison administrators could sort out who belonged to which."
Thats the "ease." Sort them out quicker.
No, I think the idea was "sort them out before they attack one another," actually.
"if you take the prison officials at their word that they're acting to stem violence and ensure the safety of prisoners, can you really categorize that as purely administrative ease?"
Sure. There are other, more expensive (less ease) ways of achieving that goal.
Are there? Can you name one that wouldn't itself be liable to legal challenge? I suppose you could put all new prisoners in 24-hr. solitary until you had found out their gang affiliations (if any), but don't you think this would be challenged as "cruel and unusual"? Or were you thinking of a separate prison-run detective force that would do an extensive background check on all prospective prisoners (that is to say, anyone on trial, presumably) so that the gang affiliations would be ready to hand the moment they were convicted?
Posted by: Michelle Dulak Thomson | February 25, 2005 4:14 PM
Actually, I think O'Connor got it right on this decision, although the way she got to it was convoluted. And even though I disagree with Thomas on this one, and I would ensure strict scrutiny for racial classifications in prisons, his writing and reasoning is crisp - I think this program, or a variation of it (perhaps more narrowly tailored), might survive strict scrutiny (certainly, prison violence is a more "compelling interest" than "diversity"). I think you can throw this one into the category, once again, of O'Connor making the most politically expedient decision (literally deciding not to decide by remanding it to the lower court for a narrow tailoring analysis).
Posted by: Chetly Zarko | February 25, 2005 6:07 PM
"No, I think the idea was "sort them out before they attack one another," actually."
My understanding is they eventually sort them by gang, and this is a temporary proxy.
"Are there? Can you name one that wouldn't itself be liable to legal challenge? "
They could make an individualized determination of what gang that person belongs to.
"I suppose you could put all new prisoners in 24-hr. solitary until you had found out their gang affiliations (if any), but don't you think this would be challenged as "cruel and unusual"?"
You've got a very rosy view of how people get treated in prisons.
Posted by: actus | February 25, 2005 8:42 PM
They could make an individualized determination of what gang that person belongs to.
Sure. Just check their wallets for their gang membership cards. That will work.
The difference is that in the University setting the administrator is acting not out of administrative ease
Yes, he is. Race in admissions is used as a proxy for diversity, because it's _easier_ to categorize people by race than to make individual assessments of their merits.
But I just found out that Thomas and Scalia didn't apply strict scrutiny. Odd. Doesn't seem consistent with their Michigan opinions.
Not especially inconsistent. You have a right not to be discriminated against by the government based on race... but when you go to prison, you forfeit most of your rights.
Posted by: David Nieporent | February 25, 2005 9:38 PM
"You have a right not to be discriminated against by the government based on race... but when you go to prison, you forfeit most of your rights."
Thats an interesting reading of the 14th. I would think you being entitled to equal protection of the laws doesn't end when you have violated them.
Posted by: Anonymous | February 25, 2005 9:51 PM
"The white man's burden can be so difficult. right actus?"
If only the 'white man's burden' consisted of unduing the harms of past discrimination.
Posted by: actus | February 26, 2005 9:43 AM
actus, that hair shirt's got to really itch.
Really, what is it that you think you accomplish with this awful self-abnegation? Who do you think benefits from it?
Why, in short, do you do it? I've observed this act in white men for a hell of a long time. Can't make heads or tails of it.
Posted by: Stephen | February 26, 2005 9:12 PM
Whats the "self-abnegation" that you're referring to?
Posted by: actus | February 26, 2005 10:06 PM
The pathological, self-debasement. It's such a pathetic act.
You're not doing anybody any good with it. It is a delusion on your part that this hair shirt act benefits anybody. It is an evil, condescending act in relationship to blacks.
Or, perhaps I've missed something. Are you operating on this premise: All white men are racists except those (like you) who engage in the hair shirt act? If that's the case, it's even worse than I thought.
This act of yours is not pretty. If you really feel this way, you'd be well advised to conceal it and hide away in a cubby hole somewhere. Why display such an attitude? It's considered good form in most public situations to at least attempt to present one's self in a positive light.
And, it just makes my skin crawl to watch a white man behave this way. Godawful. Actually it makes my skin crawl to watch any man behave this way, but only liberal white men do it. Once again, why do you do it? A better question might be: why do you do it in public?
Posted by: Stephen | February 26, 2005 10:39 PM
Sorry, John, if this is out of the ambit of what you want to see in your weblog, but it really is unavoidable.
Ward Churchill, who actus has cited as an original thinker, is not only an academic fraud, he is a plagiarist who steals other artist's work, doctors it slightly, and resells it as his own.
Forgive me, actus, but the act that you engage in can only lead to this. It's an exercise in complete phoniness.
http://sayanythingblog.com/2005/02/25/ward-churchill-artistic-plariarist
Posted by: Stephen | February 27, 2005 12:20 AM
"And, it just makes my skin crawl to watch a white man behave this way."
What race am I again?
"Ward Churchill, who actus has cited as an original thinker, is not only an academic fraud, he is a plagiarist who steals other artist's work, doctors it slightly, and resells it as his own."
Ya thats really bad. It still doesn't prevent him from writing other books that I liked. I reccommend the one that attacks pacifists as pathological racists with fasle moral superiority.
Posted by: actus | February 27, 2005 11:48 AM