Kende on Scalia’s Empirical Pragmatism

November 16th, 2011

This post mirrors a lot about what I’ve written on social cost, and in particular on Brown v. Plata (see here and here).

The case is Brown v. Plata, 131 S.Ct. 1910 (2011), which upheld a broad structural injunction against the California prison system for its failure to solve severe overcrowding, and related medical care problems, for many years. In dissent, Justice Scalia wrote as follows: “…the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course, they were relying largely on their own beliefs about penology and recidivism. And of course different district judges of different policy views would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate…Yet because they have been branded ‘factual findings’ entitled to deferential review, the policy preferences of three District Judges now govern the operation of California prison’s system.” Id. at 1955.

I wonder what folks think about this argument. I find the tone to be unnecessarily dismissive, and also find irony in his ideologically based assertions that such findings are not neutral. What else could the District Judges have relied upon besides experts and data. Moreover “what occurred here” was a Court ruling that may protect the health and safety of vulnerable prisoners.