The Supreme Court Expresses Skepticism About a California Policy That Temporarily Segregates Prisoners By Race

Last week the U.S. Supreme Court handed down a 6-2 ruling in Johnson v. California (the Chief Justice did not participate.) The case involved the California Department of Corrections' (CDC's) policy of segregating new prisoners by race - ostensibly to reduce racial gang violence -- for up to 60 days in two-person cells.

Reversing a ruling by the U.S. Court of Appeals for the Ninth Circuit, the high Court held under the equal protection clause of the Fourteenth Amendment that the CDC's race-based policy cannot stand unless it survives what the Court commonly refers to as "strict judicial scrutiny."

Under such strict scrutiny, only those government uses of race that are absolutely "necessary" to accomplish overriding, or "compelling," government objectives will be upheld. Justices Thomas and Scalia explicitly disagreed with this standard; these two Justices would have upheld California's plan in deference to the judgment of prison officials.

The Johnson ruling illustrates many important features of the Court's modern equal protection jurisprudence. The case shows how literally central, and nuanced, Justice O'Connor's views are. It shows how extreme the views of Justices Thomas and Scalia are (and perhaps also that these Justices are alienated if not marginalized on these issues).

Most importantly, it demonstrates the incomplete and unsatisfactory nature of the explanations the Justices - across the spectrum - give to justify their doctrines and their results.

A Hard-to-Resist Force and a Difficult-to-Move Object - The Two Lines of Cases Between Which The Court in Johnson Had to Choose

The key question in Johnson was which of two competing lines of cases would govern. In one line of cases, the Court had said over and over that all government actions that expressly classify individuals according to their race - that is, all laws in which a particular individual's race is overtly relevant to whether government gives that person a benefit and/or imposes on that person a burden - must be adjudged under the strict scrutiny standard. (Perhaps the most emphatic language laying down this rule came from the Adarand Constructors, Inc. v. Pena ruling a decade ago, applying strict scrutiny to a federal contracting set-aside program.)

The Court has adhered to this rule even in the face of arguments made by some of the more liberal Justices, for example, Justices Brennan and Marshall, that express racial classifications that seem to burden racial majority groups rather than racial minority groups should be treated differently than laws that on their face impose substantial burdens on minorities because majorities can take care of themselves in legislative arenas and minorities cannot.

But this more liberal position never carried five votes. Indeed, in the momentous University of Michigan affirmative action cases two years ago, the more liberal Justices on the current Court (e.g., Justices Ginsburg, Souter and Breyer) were unsuccessfully in arguing that strict scrutiny should not govern race-based affirmative action settings. (They reiterated their adherence to that position in a separate opinion concurring in Johnson.)

The other line of cases bearing on Johnson concerned judicial review of decisions by correctional officials as to how to run prisons. This line of cases is most often associated with Turner v. Safley, where the Court heard challenges to prison regulations concerning prisoner mail and prisoner marriage.

In the Turner line of cases, the Court has said that a relaxed standard of review, which embodies a great deal of deference to prison officials' judgment, is appropriate for "all circumstances in which the needs of prison administration implicate constitutional rights." This relaxed standard is a far cry from strict scrutiny; rather than requiring a law to be "necessary" to a "compelling" interest, this test requires only that a prison decision - in order to be upheld -- be reasonably related to a legitimate penological interest and somewhat sensitive to the needs and desires of the inmates.

Because these two standards of review are so different, one of them had to give way in the Johnson case. Either the case was going to be treated as a race case, in which event strict scrutiny controlled, or as a prison case (as the Ninth Circuit thought), in which event a deferential test applied.

The World of Equal Protection According to Justice O'Connor

Six Justices chose to place Johnson in the race case category, and accordingly to subject California's policy to a searching judicial scrutiny. Justice O'Connor - as she does in virtually all the important race cases - represented the center of the Court and wrote the lead opinion.

For Justice O'Connor, the government's use of an express racial classification is always suspicious - it always is a sign that government may be up to no good. As she explains things in Johnson, once the Court's suspicions have been aroused by the government's use of race, strict scrutiny is the tool the Court can and should use to either confirm or allay its fears. Laws that don't survive the strict scrutiny may in fact have been based on notions of racial hierarchy or simple racial politics, rather than on strong and legitimate governmental interests. In other words, strict scrutiny is the device the Court uses to "smoke out" illegitimate racial thinking when the Court has reason to be doubtful from the outset.

Much of Justice O'Connor's explanation for the invocation of strict scrutiny was quite familiar from past opinions. But even as Justice O'Connor replowed some well-tilled ground, she also said a few things that illustrate her nuanced - and perhaps not completely well-explained -- understanding of doctrine.

For example, in describing the general rule she follows in Johnson that "racial classifications" are subject to strict scrutiny, she lumped to together two different kinds of cases the Court has often kept in separate boxes or categories. One kind of case involves so-called "facial" or "express" racial classifications - where the government openly takes the race of individuals into account. That kind of case has usually been contrasted with a second kind of case, in which laws are race-neutral on their face, but may be motivated by racial demographics. (A good example of this second kind of case might be a government's decision to disenfranchise all felons because people of color are overrepresented among the felon ranks.) In Johnson, Justice O'Connor lumps both of these cases together and calls them "racial classification" cases.

Indeed, she even cites, apparently as yet another example of a "racial classification," a very contested and quirky third kind of case. In this third kind of case, the law in question does not make the race of individuals relevant. Nor is the challenged law enacted because of its adverse effect on people of a particular race. Instead, the law is challenged and struck down because it has the effect of making it very hard for certain racial groups to accomplish their legislative agendas. The case in this third category cited by Justice O'Connor is the 1982 ruling in Washington v. Seattle School District No. 1. There, the Court by a 5-4 vote struck down a Washington State initiative that put an end to racial busing in K-12 education.

The Seattle School District case has been thought by most observers to be a constitutional dead letter - what some commentators would call "sport." Justice Kennedy pointedly declined to rely on the Seattle ruling in the famous Romer v. Evans case involving anti-gay laws, even though the lower courts in that case had leaned on Seattle.

And yet in Johnson Justice O'Connor (joined by Justice Kennedy, I should add) cites Seattle as a garden-variety example of a racial classification. Making the citation more odd still is the fact that Justice O'Connor dissented in the Seattle case when it came down. (Of the Justices who were on the Court in 1982 and who are still there today, two of the three - the Chief Justice and Justice O'Connor - dissented in the 5-4 Seattle ruling. Justice Stevens was in the majority.)

Nor is it just exotic cases like the Seattle decision that receive unexpected treatment in Justice O'Connor's Johnson opinion. Even Brown v. Board of Education - the grandmother of modern racial classification cases - comes in for a little recharacterization.

In Johnson, California argued that its policy should not be troubling because blacks weren't being treated any worse than whites - they were all separated from each other. Justice O'Connor responded to this not simply by saying that racial separation - even when done on "neutral" terms - is still suspicious. Instead, she said: "Indeed, we rejected the notion that separate can ever be equal. . . 50 years ago in Brown."

Some might read this statement to mean that all racial separation will always violate the equality command of the Fourteenth Amendment. But I (and many others) had not necessarily read Brown so broadly.

Rather, I might have said that the teaching of Brown is that the kind of racial separation practiced in the South and other parts of the country in 1954 - premised as it was on notions of racial caste and hierarchy - was invalid. That is how the Court framed the "question" that Brown presented when the Court discussed Brown in the context of a larger discussion about stare decisis (precedent) in Planned Parenthood of Southeastern Pennsylvania v .Casey.

But if the question in Brown focused on the kind of segregation at issue in that case, then racial separation in other times and in other places for other reasons (say, to facilitate the focused education of a group of young African American men who have had scrapes with the law) might be a different matter.

Perhaps Justice O'Connor does not intend to foreclose any of these possibilities, and meant only to say that all racial separation is subject to strict scrutiny. But if so the phrase separate can never be "equal" was unfortunate language to use.

From the Center to the Edge - Justices Thomas and Scalia

As underexplained as some of Justice O'Connor's language may be, the views of Justice Thomas and Scalia - who dissented in Johnson and would have upheld California's policy under the lenient Turner v. Safley standard - are much more complicated still.

These two Justices have in the past been most forceful in arguing for reading into the Fourteenth Amendment a color-blind mandate. But now, they seem quite quick to recognize an exception to that mandate when lowly prisoners are involved. Yet Justices Thomas and Scalia seem to feel this is consistent. How can that be?

One explanation is that Thomas and Scalia take a predominantly individualistic approach to interpreting the equal protection clause. And on their view, prisoners, by their crimes, have forfeited their constitutional dignity. It follows for them, then, that there is really not much of an equal protection problem raised by the prison's policy.

Justice O'Connor suggests, however, that California's use of race harms not just the prisoners -- but all of society as well - because of the racial messages it sends. On this view, the equal protection clause concern seems more important.

In other cases, Justices Thomas and Scalia do seem attuned to racial messages. They lament the "cynical" thinking that government's use of race promotes, and the adverse socio-political harm stemming from government race-consciousness is one of the only explanations these Justices ever give for their generally color-blind instinct. But here, racial messages seem unimportant to the dissenting justices.

Justices Thomas and Scalia also fail to see any relevance to the fact that California's policy is very unusual among the states. They believe that fact may bear on whether strict scrutiny is satisfied - on whether California really needs to do what it is doing. But they do not believe it is relevant to the issue presented by the Johnson case - namely, whether strict scrutiny should apply in the first place.

Again, Justice O'Connor has a different view. She wrote that strict scrutiny is not an end in itself - it is a means to "smoke out" evil or sloppiness when government's use of race in the first place makes us suspicious. On this view, it makes sense to be particularly suspicious of unusual uses of race - they are especially likely to cover up evil or sloppiness. (It also makes sense, as Justice Stevens points out in his separate opinion, to be particular suspicious of unwritten policies like California's.)

(Consider, in this regard, some analogies. The Eighth Amendment singles out cruel and unusual punishment. The Court found it relevant that Connecticut's contraception ban was unusual among the states when it struck the ban down in the right-to-privacy case Griswold v. Connecticut. And, most recently, the Court in Texas v. Lawrence indicated that Texas's gay sex ban was particularly vulnerable because it was unusual.)

Unlike Justices O'Connor and Stevens, Justices Thomas and Scalia don't seem to take seriously the idea that strict scrutiny is best understood as a tool to "smoke out" bad uses of race when we have cause for suspicion. Instead, they believe that racial classifications - at least when they operate outside the prison context - are simply constitutionally impermissible. But - and this is my big beef - they never really explain, in Johnson or any other opinions, why this should be so. Rather, they simply say color-blindness must be the rule. Period.

To be sure, they often cite to Justice Harlan's reference to color-blindness in Plessy v. Ferguson. But even Harlan - as revered as he is in some circles - was not a drafter or ratifier of constitutional text. (It also bears noting that Harlan's vision of a color-blind society expressed in Plessy was one in which he anticipated that, as a matter of fact, the "white race [would be] dominant . . .in achievements, in education, in wealth and in power. . . for all time.")

Justices Thomas and Scalia are entitled, of course, to differ from Justice O'Connor. But when they do, they must defend their alternative approach. And this they have not done. It's not enough to simply say: "race can't matter, except in prisons."