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Argument recap: Jousting over prisoner release

Analysis  (Updated to 2:55 p.m.)

In an argument that at times came close to being rowdy, the Supreme Court’s members jousted on Monday over whether to take on themselves the management of the way California provides medical care for some 140,000 prison inmates, or to leave that chore to a lower court that some Justices thought had done it right and some thought had botched the job.  In the end, the final choice seemed likely to reside with Justice Anthony M. Kennedy, who insisted that the lower court be left with a lot of discretion but who just as plainly showed he was not entirely satisfied with how it had used that leeway.

An argument that ran just a few minutes over the already expanded schedule of 80 minutes found Justices raising their voices and interrupting each other with some frequency as Chief Justice John G. Roberts, Jr., tried only occasionally and gently to referee.  All of the Court’s members except Justice Clarence Thomas were warmly engaged, and seemed determined at times to drive the arguments of counsel in Schwarzenegger v., Plata, et al. (09-1233) — the first case to reach the Court on the power of the courts to order a release of thousands of inmates from over-crowded prisons under a 1996 federal law.

Both the Court and the two lawyers who argued were so locked into a review of the details of the actual release order issued by a three-judge District Court in the case that no one spent even a second of the lengthy hearing discussing procedural complications that might have kept the Justices from ever ruling on the validity of that order.  It appeared that the Court had silently accepted the notion that the entire case, with some parts of it stretching back 20 years, was before it for a definitive ruling.

The focus of attention shifted fully to Justice Kennedy, as the other Justices appeared very closely divided as they made clear where they stood for or against what the District Court had done in ordering that upwards of 35,000 inmates be turned loose in California over the next two years.  And, if what Kennedy said controls how he would be voting on the final outcome, it seemed that he would not be willing to overturn that release order in its entirety, but would find ways to indicate that the remedy had to be reshaped or pared down in its scope.  For example, Kennedy repeatedly suggested that the number released should be cut back by about 7.5 percent — meaning that about 24,000 would be sent home.

Even that number, it was plain, would be far too high for one of the Justices — Samuel A. Alito, Jr., who grew visibly agitated at the prospect of thousands of dangerous inmates roaming the streets of California and starting a new crime wave.  After a lawyer for California inmates tried to reassure Alito by suggesting that perhaps only 17 percent of those who would actually be released might commit new crimes, compared to an overall repeater rate in California of 70 percent, Alito was in no way comforted.  “That means 3,o00 are going to commit another crime,” the Justice said, doing a quick calculation.  “If this order goes into effect, we will see, the people of California will see, whether or not there is more crime,” he said ominously.

Justice Alito was the only member of the Court who made it obvious that he was convinced that no prisoner release order should have been issued in the California case.  He could not see, he suggested, how setting a limit of the total prison population would get at the problem of inadequate medical care for the inmates.   The solution that the District Court adopted, after concluding that nothing else would work to protect the health of the inmates and the prison staffs, was that the prison population must be cut down to 137.5 percent of design capacity within two years.  It is now somewhere around 195 percent of capacity.

The Chief Justice displayed considerable skepticism about the District Court’s approach, and Justice Antonin Scalia, who took comparatively little part in the exchanges, also was doubtful.  Since Justice Thomas said nothing, it is unclear how he would react, but the normal expectation would be that he would vote with the Court’s conservatives.

The three-judge District Court, and the two single District judges who had previously been handling the two overcrowding cases that are now combined, had quite conspicuous support Monday from Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  Justice Ginsburg, now and then abandoning her usual gentle and understated manner, was energetic in her defense of the need for the courts to do something after the hazards to inmate health had been litigated for two decades.

The state of California’s lawyer, Washington attorney Carter G. Phillips, had barely opened his argument with a suggestion that the District Court’s prisoner release order was “extraordinarily premature,” when Ginsburg reminded him that one of the cases “has been pending for 20 years.”  One judge, she recalled, had issued 70 remedial orders.  “How much longer do we have to wait? Another 20 years?” she demanded.

And, within another minute or two, Justice Sotomayor was demanding that Phillips “slow down from the rhetoric” and focus very specifically on “the concrete details” of what California was actually doing to try to relieve the health hazards due to overcrowding.  When Sotomayor continued to press Phillips for details, Justice Scalia, with evident sarcasm and a taunt to Sotomayor, advised Phillips to answer without using rhetoric.

Phillips, a veteran advocate before the Court who is alternately demonstrative and tightly controlled, at times had no chance to finish some of his answers as another of the liberal Justices swooped down on his argument that, if California just had more time, it could solve the prison health crisis without a massive prisoner release.  Justices Sotomayor and Kagan sought to pin down the state’s lawyer on whether California could, in fact, solve the crisis within five years, as the state has sometimes suggested, instead of the two years mandated by the District Court.  And Kagan at one point accused Phillips of asking the Court “to re-find the facts” in litigation that had been underway for two decades.

Amid the liberals’ pummeling, Justice Kennedy started intervening, opening with a comment that “a some point, a court has to say you have been given enough time.  The constitutional violation persists, now it’s time for a remedy.  The court has to focus on remedy; that seems perfectly reasonable to me.”  In a few minutes, Kennedy added that there was “massive expert testimony to support the inmates” in their demands for a remedy to the overcrowding.

Justice Alito, who would save most of his questions and comments for the prisoners’ lawyer, did intervene when Phillips was the podium to complain that the court-appointed receiver working on a solution to the health crisis had improperly filed an amicus brief in the Supreme Court to try to get evidence belatedly into the case.  Along with his later comments, Alito was making it plain that he could find no legitimacy in the process that had led to the prisoner release order.

When Berkeley lawyer Donald Specter rose to defend the District Court’s solution, it became the conservative Justices’ turn to mount a continuing challenge.  Justice Scalia began with a complaint that the District Court had cut off the admission of evidence, so that the state supposedly had been unable to show it was making progress without a prisoner release order.  The Chief Justice picked up on the point, too.  But it soon was Justice Alito’s turn, and he moved quickly to suggest that the 137.5 percent design capacity goal set by the three District judges simply did not fit the problem of health hazards behind the walls.  “It seems to me a disconnect,” he said, suggesting that a release order could not have been a “narrowly tailored” approach to the problem.

And, although Phillips’ argument had been using a 36,000 figure to estimate how many inmates would be set free under the District Court order, Justice Alito chose to talk of 46,000 — the number that was estimated earlier but that both sides in the case now concede would be lowered, perhaps by about 10,000.

As Alito and then the Chief Justice criticized the order, and openly wondered about the need for it,  Justice Kennedy and some of the more liberal Justices began offering suggestions for some modification of the District Court’s mandate.  Justice Kagan, for example, suggested that perhaps the state could be given five years instead of two to reach the prison population reduction.  And then Kennedy began a defense of a design capacity goal of 145 percent, instead of the District Court’s figure of 137.5 percent.  Some experts, he said, had endorsed the higher figure.  Specter, however, said that was a figure suggested by only one expert, a psychologist.  Kennedy did not seem dissuaded, however.  “I don’t see a finding [by the District Court] that 145 would not be an efficacious remedy.”

Specter, who at times seemed intimidated, had its greatest difficulty with Alito — over the threat to public safety from a large release — and with the Chief Justice — over how a state faced with multiple obligations to spend money was to make a choice.   Specter, in fact, seemed to irritate the Chief Justice when the lawyer, asked about budget priorities, said “I believe that state’s have an obligation to enforce constitutional rights.”  The Chief Justice shot back: “I believe that, too, counsel. But what is a state supposed to do?”

When Phillips returned to the lectern for a three-minute rebuttal, Justice Kagan used a good part of that time pressing him to commit to the proposition that the state could solve the prison health crisis in five years without any threat to the public safety.  Phillips would not make a flat commitment.

Recommended Citation: Lyle Denniston, Argument recap: Jousting over prisoner release, SCOTUSblog (Nov. 30, 2010, 1:28 PM),