Justice Kennedy says: 'Open Sesame.'

It’s late May, so we’re entering the home stretch of the Supreme Court Term. Over the next few weeks, the Court will be handing down opinions in the most contentious, closely divided cases.

One such opinion came down today: Brown v. Plata (formerly Schwarzenegger v. Plata). In this high-profile case, a three-judge district court issued an order that directed the State of California to reduce its prison population — e.g., by releasing prisoners (as many as 46,000, at the time of the order) — in order to address problems with overcrowding and poor health care for inmates.

When SCOTUS granted cert, I thought that it did so in order to summarily reverse. Federal judges running penal institutions, ordering tens of thousands of convicted criminals to be let out onto the streets? The district court’s order reeked of the kind of Ninth Circuit liberal activism that doesn’t sit well with the Roberts Court. (Note that one of the members of the three-judge panel was the notoriously left-wing Judge Stephen Reinhardt.)

Well, I was wrong. The Court just affirmed, 5-4, in an opinion by (who else?) Justice Anthony Kennedy.

There were two dissents, by Justices Antonin Scalia and Samuel Alito. Justice Scalia’s opinion in particular contains some stinging (but ultimately ineffectual) benchslaps….

There’s coverage of the case at the WSJ Law Blog and the ABA Journal, among other outlets. You can read the 90-plus pages of dueling opinions here.

The voting breakdown is what you’d expect. Justice Kennedy’s opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia’s dissent was joined by Justice Thomas, and Justice Alito’s dissent was joined by Chief Justice Roberts.

Here’s an overview of the case, from Debra Cassens Weiss:

The U.S. Supreme Court has upheld a cap on California’s prison population that was imposed by a three-judge federal panel to reduce prison overcrowding and improve inmate health care. At the time the cap was imposed, it could have resulted in the release of 46,000 prisoners. Since then, 9,000 prisoners have been released, reducing the potential number of prisoners that could be freed under the order to 37,000.

The U.S. Supreme Court’s 5-4 decision on Monday found that the cap was authorized by the Prison Litigation Reform Act and needed to combat violations of inmates’ constitutional rights to medical and mental-health care…. The potential release of prisoners under the cap is “of unprecedented sweep and extent,” [Justice] Kennedy wrote, but “so too is the continuing injury and harm resulting from these serious constitutional violations.”

…. Before the cap was imposed, California prisons were housing nearly double the numbers they were designed to hold. Under the lower-court order, the state was required to reduce the prison population over a two-year period to 137.5 percent of the design capacity.

In his fiery dissent, Justice Scalia seized upon what Justice Kennedy acknowledged as a remedy “of unprecedented sweep and extent.” Here’s his opening (via Josh Blackman):

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

Justice Scalia should take some of this language — “a case whose proper outcome is so clearly indicated by tradition and common sense,” “proceedings that … were a judicial travesty,” a violation of “bedrock limitations on the power of Article III judges” — and save it on his iPad, in a folder entitled “Stuff To Use In My Future Perry Dissent.”

Josh Blackman does a nice job of collecting Nino’s best benchslaps in this post, Scalia’s Greatest Hits in Brown v. Plata. Check out the first three:

  • “Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions.”
  • “Most of [prisoners ordered released] will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”
  • On the 9th Circuit’s reliability- “Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual California prisoners four times this Term alone.”

Ouch. Read the rest over here. The outcome of this case may be regrettable, but at least it gave Justice Scalia an opportunity to do what he does best (affiliate link).

The chance to read some Scalia zingers, however, might not be worth the price. Note the dramatic conclusion to Justice Alito’s (otherwise more understated) dissent:

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California….

I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong.

In a few years, we will see.

Indeed. If even one of the tens of thousands of prisoners to be released goes on to commit a horrific crime, such as a rape or a murder, the liberal judges who ordered this remedy will not hear the end of it — and properly so, some might say.

Instant Analysis: Brown (Former Schwarzenneger) v. Plata [Josh Blackman]
Scalia’s Greatest Hits in Brown v. Plata [Josh Blackman]
SCOTUS Ruling Could Trigger Release of Thousands of California Inmates [WSJ Law Blog]
Supreme Court Upholds Calif. Prisoner Cap; Dissenter Scalia Hits ‘Radical Injunction’ [ABA Journal]
Brown v. Plata [U.S. Supreme Court]


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