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.
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?
Two years later, as expected, the Justices denied a stay on Governor Brown’s request to delay the 9th Circuit’s ordered release of thousands of prisoners. Justice Alito would have granted the stay.
Justice Scalia, joined by Justice Thomas,opened up, with both barrels. After rehashing his opinion from Plata, and saying “See I Told You So,” he slams the majority.
The bluff has been called, and the Court has nary a pair to lay on the table
Of all the possible hands…I will read a double entendre there. Scalia stresses a point Justice Alito made in his dissent–that releasing these prisoners puts criminals at risk.
But as I suggested in my dissent, perhaps the Court never meant to follow through on its revisions suggestions. Perhaps they were 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, then will be none of this Court’s responsibility. So also today, it is not our fault that California must now release upon the public nearly 10,000 inmates convicted of serious crimes.
And for good measure, citing Lawrence and Windsor, Nino turns to judicial hubris.
It appears to have become a standard ploy, when this Court vastly expands the Power of the Black Robe, to hint at limitations that make it seem not so bad. See, e.g., Lawrence v. Texas, 539 U. S. 558, 604 (2003) (SCALIA, J., dissenting); United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 25–26) (SCALIA, J., dissenting). Comes the moment of truth, the hinted-at limitation proves a sham. As for me, I adhere to my original view of this terrible injunction. It goes beyond what the Prison Litigation Reform Act allows, and beyond the power of the courts. I would grant the stay and dissolve the injunction.
Of course, Scalia refers to the line in Lawrence saying that the opinion does not implicate same-sex marriages, and ten years later, nevermind, it does.
As for me, I adhere to my original view of this terrible injunction. It goes beyond what the Prison Litigation Reform Act allows, and beyond the power of the courts. I would grant the stay and dissolve the injunction.
For some time now, I’ve been waiting for Justice Scalia’s see-I-told-you-so-and-then-some dissent on the aftermath of Brown v. Plata. Now we got it. A few weeks ago, I wrote, “Justice Scalia will enjoy writing a dissent, even if from denial of cert.” I bet he did.