March 1, 2005
Finally: More on Johnson v. California ::
legal — tagged civil rights, conlaw, legal and SCOTUS
10:06 am
As I noted previously, I wanted to write a more in-depth reaction to the Supreme Court’s Johnson v. California decision. I’ve now had a chance to read the whole opinion, and have had a few days to think about it. I have to admit, my ambivalence toward these four opinions is quite astounding. But because it’s not a cut-and-dry issue, that means that I have lots to talk about. So here goes.
First, I want to make clear what the majority held in this case. In spite of what my pevious post might have suggested, the Supreme Court did not strike down the prison segregation policy. Instead, they simply held that strict scrutiny was the appropriate level of review for this matter. They then remanded the case to the district court for further proceedings. Presumably, the majority believed that there simply was not a sufficient record to make a sound decision on whether or not the CDC’s segregation policy violated equal protection.
That’s fair enough. But I wonder whether the majority (per Justice O’Connor) has opened the door to the federal courts finding that such a policy passes a heightened level of review. My curiosity is based on two separate issues. First off, you may (or you may not) remember in the Court’s 2003 Affirmative Action cases that the Court upheld its earlier holding that all racial classifications, no matter their purpose, must be held to the Strict Scrutiny standard of review. This rule applies no matter if the segregation is for bad reasons (such as in Korematsu or Brown v. Board) or for “good” reasons, such as remedying past segregation (see Plessy, Croson, Adarand, and, finally, the University of Michigan cases noted above). In the University of Michigan cases, the Court found that Strict Scrutiny did apply, but that, at least in the case of the law school’s admissions process, racial classifications did pass that highest level of constitutional review. So even though strict scrutiny sounds like an impossible test for race-based classification to pass, the Court found that there were cases in which taking race into account would be OK.
Secondly, couple that holding with the Court’s history of being highly deferential to those government agencies engaged in fighting crime or dealing with national security (see, e.g., Korematsu), and I argue that unless the Court uses some guiding principle in distinguishing “acceptable” racial classifications from impermissible ones, then there is no clear, consistent rule on how the Court should deal with protecting racial minorities in this country. As a result, even if the Court has a healty body of law that is intolerant of segregation, the future meaning of the equal protection clause is in severe doubt. In my view, this means that the possibility of equal protection being severly curtailed is quite significant. Given the War on Terror, in which our enemy is made up overwhelmingly of Arabs, Persians, it would be quite easy to say that a segregation policy — or, God forbid, widespread internment — passes Strict Scrutiny. As near as I can tell, there is no such guiding principle in the majority opinion, so I can’t say with any amount of certainty which way we’re headed in this area of law.
Thankfully, Justice Ginsburg’s concurrence draws a clear distinction between Affirmative Action initiatives, such as the ones practiced by University of Michigan Law School and segregation policies such as the one practiced in the California prisons. Basically, Ginsburg makes clear that there is a difference between those “benevolent” racial classifications that help historically oppressed classes of American citizens, and those that are used for mere administrative convenience (such as the policy at hand). In my view, this distiction makes it much harder for the CDC to show that their segregation policy meets Strict Scrutiny. Hopefully, as this decision plays itself out, the lower courts will take seriously Justice Ginsburg’s distinction as they further review the case.
Which brings me to Justice Stevens’ dissent. In his view, a lesser standard of review would be appropriate, because we’re dealing. But he also believed that even using that lower standard of review, the CDC was unable to show how a policy of prisoner segregation furthered their interests in institutional security. The funny thing is, although I don’t agree that the lower standard of review is applicable in this case, Stevens’ reasoning in fact bolsters the lower standard of review. So who knows — even if he was wrong about the issue of standard of review, maybe his reasoning would have the effect of more actively engaging the Court in overseeing the constitutionality of administrative policies. So in the end, I agree significantly with Stevens opinion, even though I find I don’t want to.
Finally, a note on the Thomas dissent (which Scalia joined). I agree with Professor Balkin that Thomas and Scalia’s reasoning is completely mystifying. Although I have, without exception, disagreed with Thomas and Scalia in their approach to equal protection, I could — up to this point, anyway — argue that they had a pricipled approach to equal protection. That principle is that the Constitution tolerates no racial classifications. But here, they found that such a principle does not extend to prisoners. So who knows what that is all about. And the world of Thomas and Scalia, it would be unclear just how strong strict scrutiny should be. If it does not apply to prison segregation, where else shouldn’t it apply? And if there are such appropriate exceptions to the rule of strict scrutiny, doesn’t that. The funny thing is that Scalia and Thomas both took strict scrutiny very seriously in the Affirmative Action context. Now I can’t help but wonder how serious they actually were, or whether their assertions were just words on the page…
