The Irony of Justice Scalia's California Prison Rant

His dissenting opinion on Brown v. Plata has nothing to do with the subject at hand: prisoners and the Eighth Amendment.
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Supreme Court Justice Antonin Scalia (Kevin Lamarque/Reuters)

It took United States Supreme Court Justice Antonin Scalia fewer than three pages Friday -- barely enough time for him to clear his throat, really --  to issue of one the most petulant dissents you are ever likely to read. Take five minutes and do that now. You won't be disappointed but you may be confused: What in the world is he talking about? you might be asking yourself. Why does he seem so mad about a choice his colleagues have just made to support the well-supported findings of a lower-court panel?

As he did two years ago when the case first reached Washington, Justice Scalia thinks it's a terrible idea for judges to force California bureaucrats to meet their constitutional obligation to humanely house the tens of thousands of inmates who have been languishing there for decades in deplorable prison conditions. But instead of arguing the merits of that question, or addressing California's continuing failure to abide by the law, or the facts as they've been revealed since 2011, the justice instead directed his scorn at his colleagues on the Court -- you know, the ones who all so famously get along so well.

What a dissent! Writing for himself and Justice Clarence Thomas, in intemperate language even for them, Justice Scalia suggested that his fellow justices (in 2011) set up California officials for failure (today) by creating an impossible series of legal and factual standards for the state to meet in granting early release to some state prisoners. Moreover, he alleged that his fellow justices orchestrated those standards in a way so as to absolve themselves from any criticism should any trouble come from the forced release of those prisoners -- a "ceremonial washing of the hands," is how he put it -- in 2011 and again last week.

It was a furious dissent, unhinged from the four corners of the instant dispute, revelatory for what it continues to say about Justice Scalia's withering writing style and his ever-narrowing view of the Eighth Amendment. It also was full of irony. Let me (begin to) count the ways.

1.  Even though the underlying 2011 case, Brown v. Plata, is about the power of the federal courts to force the executive branch to comply with their obligations to prisoners under the Eighth Amendment, Justice Scalia ("Mr. Originalism") did not once mention that amendment in his dissent. Nor did he mention the extensive factual findings made by a three-judge panel that rejected California's attempt to get around the Supreme Court's 2011 mandate. Nor did he mention the factual findings made by the experts upon whom the three-judge panel relied. Or the fact that the prisoners in many cases are simply being transferred to county jails or to other states.

2. Who got a complete pass from Justice Scalia? The two California officials most responsible for the state's prison crisis -- and its refusal to comply with the Court's 2011 opinion. Justice Scalia didn't once mention Gov. Jerry Brown or State Attorney General Kamala Harris, whose defiance of the Supreme Court has been nothing short of contemptuous. This year alone, California officials have made one patently frivolous argument after another trying to weasel out from Brown. Over and over again, the lower court judges have seen through the ruse. Not Justice Scalia (or Justice Thomas). They've now chimed in -- to say that they are on California's side.

3. And not just on their side. But advocating on their behalf. The only reference Justice Scalia made to the record of the past two years -- a record replete with evidence that California has repeatedly failed or refused to do what it was ordered to do in Brown -- was to say that the state "provided evidence that it has made meaningful progress and that population reductions to the level required by the injunction are unnecessary." Not only is this argument incomplete, it's also corrosive. "It's okay for a losing litigant to comply with a federal court order as far as it wants to" -- is precisely what Southern lawmakers said in 1954 in the wake of another Brown.

4. In an age where Court conservatives are roundly criticized for hiding their true intentions in a "fig leaf" (to use Linda Greenhouse's memorable phrase), Justice Scalia accused Justice Anthony Kennedy and the Court's four progressives of "a standard ploy, when this Court vastly expands the Power of the Black Robe, to hint at limitations that make it seem not so bad." This from a justice (and his fellow dissenter) who gutted the Commerce Clause last year in voting down the Affordable Care Act and who narrowed the scope of the 15th Amendment in late June to strike down Section 4 of the Voting Rights Act.

5.  And speaking of Justice Kennedy, the Scalia dissent took direct aim at Lawrence v. Texas and United States v. Windsor, two of the most important decisions of Justice Kennedy's career. In Lawrence, Justice Kennedy swept away state anti-sodomy laws that criminalized homosexual behavior, a ruling Justice Scalia accurately predicted might lead to same-sex marriage. In Windsor, Justice Kennedy swept away the Defense of Marriage Act, which Justice Scalia (again, accurately, I think) has predicted ultimately will lead to the national abolition of same-sex marriage bans. What do these cases have to do with prisoners and the Eighth Amendment? Absolutely nothing -- like just about everything else in this dissent.

The Court's opinion in Brown v. Plata -- authored by the native Californian Kennedy -- was one of the most righteous decisions the Court has issued in the past decade. It cut through the bureaucratic morass to protect the rights of people who were (and still are) living in conditions that fall far short of what the Constitution commands. Last Friday's choice by six justices -- including the Chief Justice -- to support that 2011 ruling also is righteous because it reminds California (and the rest of us) that state officials aren't free to pick and choose which federal court orders they will obey and which they won't. You would think that basic premise of the rule of law would find a recruit in Justice Scalia. But if you thought that you would be wrong.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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