Thomas Redux
Here is the opening of Justice Thomas' dissent from today's Supreme Court decision in Johnson v. California, in which the majority decided that California's practice of briefly segregating prisoners by race as a means of deterring the formation of race-based gangs in prison requires strict scrutiny under the Constitution:
The questions presented in this case require us to resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (emphasis added) (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995)). On the other, this Court has no less categorically said 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." Washington v. Harper, 494 U. S. 210, 224 (1990) (emphasis added).
Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less fundamental than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates, in prisons that have been a breeding ground for some of the most violent prison gangs in America, all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives. I respectfully dissent.
I am not concerned here with whether Thomas's argument is right and the majority is wrong. Rather, I just want to note that Thomas's prose is extraordinarily clear about setting up the terms of the argument. The penultimate sentence is classic in its juxtaposition of the two competing world-views represented by the two duelling legal conclusions of the majority and minority.
Harry Reid, any comments?
The questions presented in this case require us to resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (emphasis added) (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224 (1995)). On the other, this Court has no less categorically said 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." Washington v. Harper, 494 U. S. 210, 224 (1990) (emphasis added).
Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less fundamental than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates, in prisons that have been a breeding ground for some of the most violent prison gangs in America, all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives. I respectfully dissent.
I am not concerned here with whether Thomas's argument is right and the majority is wrong. Rather, I just want to note that Thomas's prose is extraordinarily clear about setting up the terms of the argument. The penultimate sentence is classic in its juxtaposition of the two competing world-views represented by the two duelling legal conclusions of the majority and minority.
Harry Reid, any comments?
posted by PDB at 11:03 AM
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