This wasn't supposed to happen here

Last November, we reported on a pending U.S. Supreme Court decision involving the separation by race of newly transferred male prisoners in the California prison system. In the real world of the penitentiary, where so much physical violence is tied to racial hostility, administrators have established policies to maintain some degree of safety for inmates and prison staff. Although these policies differ by state, some form of control related to race is not unusual.

In 2001, a brutally honest report by the liberal-oriented Human Rights Watch highlighted the crisis of rape in prisons, especially rape suffered by whites and others at the hands of more physically powerful black men. It was clear, even back in November, that most of the Justices, suffused as they are in the quasi-religious notion of "integration at any price and any pain," would vote against the prison administrators' race separation policies and override the ruling of the Ninth Circuit U.S. Court of Appeals.

On February 23, the Opinion of the Court was delivered by Justice Sandra Day O'Connor. True to the spirit of recent decades of social engineering, O'Connor, along with Justices Kennedy, Souter, Ginsburg, Breyer and Stevens agreed that race should not be used as a factor in inmate housing assignments. Justice Thomas, joined by Justice Scalia, dissented--rather vigorously.

Although the Opinion came just a tad short of proclaiming the prisons' policy of separation unconstitutional, the Justices took the opportunity to deliver pages of egalitarian preachments to prison administrators. According to them, a prison environment does not present special needs and, therefore, race classifications should be held to the same "strict scrutiny" by government as deemed appropriate in the general society. The Justices dismissed the Ninth Circuit's ruling, but in the end they returned the case back to that court to re-evaluate the policy of separation in light of this "strict scrutiny" command.

In reading the concurring opinions in this decision, a person might feel that he has entered a judicial insane asylum. This is a case [Johnson v. California, et. al. ] where a black prison inmate, a convicted murderer, who expresses concern that blacks are not being interned in cells with inmates of other races, gets his case carried all the way to the U.S. Supreme Court. Although the lawsuit is stated in general terms, it is obvious from Garrison Johnson's past history of incarceration that it is he who desires to be housed with a non-black cell mate. As his lawyer put it to the Court, in a segregated environment Johnson is "unable to reach out across racial lines for support." Whatever that means. The fact that the Court decided to take on this case is bewildering.

The Justices, calling on the Court's previous rejections of the "separate but equal" doctrine, and making incredulous references to such affirmative action cases as Adarand Constructors, Inc. v. Pena, Richmond v. Croson and Grutter v. Bollinger, proudly declared themselves against the "resurrection" of segregation. We learn that the good judges wish to "smoke out illegitimate uses of race" and also "ferret out invidious uses of race."

Justice Stevens, in a peculiar "Dissent," after sermonizing on the evils of segregation, wrote that the Court's Opinion did not go far enough, since it should declare California's policy unconstitutional and should strike it down. He spoke of the need for "racial alliances," and offered a Pollyanna discourse on how "integrated cells encourage inmates to gain valuable cross-racial experiences."

One can envision these Supreme Social Engineers patting each other on their backs, as they outdo one another in enunciating their refusal to compromise on the sacred principle of integration. Meanwhile, back in the ugly reality of prison life, are the men who face the potential of greater brutality and unnecessary torment beyond that imposed by the loss of their freedom.

In his vehement Dissent, Justice Thomas reminds his cohorts that the Constitution has always demanded less within prison walls and that society has deferred to the reasonable judgments of officials experienced in running the prisons. He writes:

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. . . .

The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives.

Thomas then goes on to offer some background on the inmate Garrison Johnson, whose lawyer brought the case to court, and on the methods of the separation policy.

At the reception center, prison officials have limited information about an inmate, "particularly if he has never been housed in any CDC [California Department of Correction] facility." The inmate therefore is classified so that prison officials can place the inmate in appropriate permanent housing. During this process, the CDC evaluates the inmate's "physical, mental and emotional health." The CDC also reviews the inmate's criminal history and record in jail to assess his security needs and classification level. Finally, the CDC investigates whether the inmate has any enemies in prison. This process determines the inmate's ultimate housing placement and has nothing to do with race. . . .

[W]hen Johnson was admitted in 1987, he was a member of the Crips, a black street gang. He was therefore ineligible to be housed with nonblack inmates.

Thomas maintains that traditionally, federal courts rarely involved themselves in the administration of state prisons, and cites several cases to support this contention.

[T]his Court quickly recognized that the extension of the Constitution's demands behind prison walls had to accommodate the needs of prison administration. This Court reached that accommodation in Turner v. Safley (1987), which "adopted a unitary, deferential standard for reviewing prisoners' constitutional claims." That standard should govern Johnson's claims, as it has governed a host of other claims challenging conditions of confinement, even when restricting the rights at issue would otherwise have occasioned strict scrutiny. Under the Turner standard, the CDC's policy passes constitutional muster, because it is reasonably related to legitimate penological interests.

Thomas chides the majority for their seeming dismissal of the prospect for violence:

The majority decides this case without addressing the problems that racial violence poses for wardens, guards, and inmates throughout the federal and state prison systems. But that is the core of California's justification for its policy: It maintains that, if it does not racially separate new cellmates thrown together in close confines during their initial admission or transfer, violence will erupt.

The dangers California seeks to prevent are real. See Brief for National Association of Black Law Enforcement Officers, Inc. as Amicus Curiae 12. Controlling prison gangs is the central challenge facing correctional officers and administrators. . . .

There are at least five major gangs in this country--the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, La Nuestra Familia, and the Texas Syndicate--all of which originated in California's prisons. Unsurprisingly, then, California has the largest number of gang-related inmates of any correctional system in the country, including the Federal Government.

Thomas claims that none of the majority's reasons for applying "strict scrutiny" are persuasive.

According to the majority, the question is thus whether a right "need necessarily be compromised for the sake of proper prison administration." This inconsistency-with-proper-prison-administration test begs the question at the heart of this case. For a court to know whether any particular right is inconsistent with proper prison administration, it must have some implicit notion of what a proper prison ought to look like and how it ought to be administered. But the very issue in this case is whether such second-guessing is permissible.

The 1987 Turner v. Safler case and a 1977 case ten years prior, set the standard by which prisoners' constitutional grievances were judged, and appeared to have settled the issue of administrators' management of prisons. However, writes Thomas,

The majority's test eviscerates Turner. Inquiring whether a given right is consistent with "proper prison administration" calls for precisely the sort of judgments that Turner said courts were ill equipped to make. . . .

The Court has steadfastly refused to undertake the threshold standard-of-review inquiry that Turner settled, and that the majority today resurrects. And with good reason: As Turner pointed out, these judgments are better left in the first instance to the officials who run our Nation's prisons, not to the judges who run its courts.

Is it reasonable to conclude that a system has lost its usefulness or has gone just plain crazy when common sense is tossed aside in favor of over-intellectualized, legalistic bombast, like that which emanates from the O'Connor Opinion? Thomas takes this case down to earth by first referring to the majority's Opinion in the University of Michigan Law School case where the Court deferred to the judgment of the faculty and administrators on their supposed need for diversity in the student body. In a shrewd nod to the majority's lack of expertise in that decision, he declares, "for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones."

But crusading Supreme Court Justices don't get to suffer the consequences of the damage done by their ignorant decisions.

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