Circuit Justice Kennedy will be busy once again. The 9th Circuit panel, which last month ordered the release of 9,600 inmates, has denied the Governor’s request to delay the order. Now, California is once again going to the Supreme Court.

“We will seek a stay from the U.S. Supreme Court,” said state Department of Corrections and Rehabilitation spokeswoman Deborah Hoffman.

She said the state would begin complying with the existing order, but “we look forward to making our case to the Supreme Court justices that no further reduction in the prison population is needed.”

Previously, Governor Brown said, “California is a powerful state. We can run our own prisons. And by God, let those judges give us our prisons back. We’ll run them right.” “Will the Court grant a stay?

Inmates’ lawyers said they doubted the Supreme Court would grant Brown a stay.

“The Court has laid to rest every argument that Governor Brown has for not promptly reducing the prison population to constitutionally acceptable levels so that prisoners can get adequate healthcare,” said Don Specter, lead attorney for the Prison Law Office, representing inmates in the core medical care lawsuit.

Justice Kennedy may have other thoughts. Some history is helpful here.

When Brown v. Plata was decided in 2011, and the Supreme Court per Justice Kennedy effectively ordered California to release 40,000-ish prisoners for its over-crowded system, many contended that the goal would simply be impossible.

Justice Kennedy was fully aware of this, and he prospectively admonished the District Court to be generous about granting continuances:

The three-judge court did not err in providing a 2-year dead-line for relief, especially in light of the State’s failure to contest theissue at trial. The State has not asked this Court to extend the dead-line, but the three-judge court has the authority, and responsibility,to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes re-quire that court to exercise its jurisdiction to accord the State consid-erable latitude to find mechanisms and make plans that willpromptly and effectively correct the violations consistent with publicsafety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observa-tions reflect the fact that the existing order, like all ongoing equitablerelief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.

Justice Scalia called out this chicanery:

I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achievethe benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the releasedinmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on thatmotion first, subject to review for abuse of discretion if it declines to modify the order.
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So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?

This could be an amazing constitutional crisis if the case goes back to the Supreme Court. Justice Scalia will enjoy writing a dissent, even if from denial of cert.