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The opinion is available here, all 69 pages of it. I will update this page as I make my way through the opinion. The Court affirms the 9th Circuit by a vote of 5-3. The Chief wrote for the majority. Justice Thomas did not join one part dealing with implied preemption (though he did not write a concurring opinion–tease). Justice Kagan recused. Justice Breyer filed a dissenting opinion, joined by Justice Ginsburg. Justice Sotomayor filed her own dissent.

Here, the Chamber of Commerce loses with the votes of the 5 conservative justices. Go figure.

Chief Justice Robert’s Majority Opinion

Chief Justice Roberts wrote the majority opinion for 5 members. However Justice Thomas did not join part II-B, which discussed implied preemption. Thomas also did not join III-B. Curiously, Justice Thomas did not write a concurring opinion. So effectively, he just disagreed, but did not provide an alternate take.

First, the Court found that Arizona had the authority to enact the state law, as the IRCA (Immigration Reform and Control Act) “preserves state authority to impose sanctions “through licensing and similar laws.” §1324a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens.”

The court finds the state law in question a licensing law.

The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partnership, and grants of authority to foreign companies to transact business in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has clear counterparts in APA and dictionary definitions of the word “license.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” to one, and therefore comfortably within the savings clause. The Chamber’s argument that the Arizona law is not a “licensing” law be-cause it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic.

The Court rejects the Chamber’s argument that the savings clause only applies following an IRCA adjudication by Congress:

The Chamber contends that the savings clause should apply only to certain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, eliminated unauthorized worker prohibitions and associated adjudication procedures in another federal statute. But no such limits are even remotely discernible in the statutory text

The Court also rejects the Chamber’s reliance on legislative history:

The Chamber’s reliance on IRCA’s legislative history to bolster its textual and structural arguments is unavailing given the Court’s conclusion that Arizona’s law falls within the plain text of the savings clause.

In Part II-B, the part Justice Thomas did not join, four justices addressed implied preemption.

The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress intended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed theStates to pursue through licensing laws. Given that Congress specifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appropriate tools to exercise that authority.

The Court rejected the Chamber’s argument that the Arizona law disrupts the federal-state balance Congress created with IRCA.

The Chamber’s more general contention that the Arizona law ispreempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest, see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341. Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly interfered with the operation of a federal program, see, e.g., id., at 351. There is no similar interference here.

The Court also rejected the Chamber’s argument that employers will err on the side of dis-crimination rather than risk the “‘business death penalty’” by “hiring unauthorized workers.”

The Chamber asserts that employers will err on the side of discrimination rather than risk the “ ‘business death penalty’ ” by “hiring unauthorized workers.” That is not the choice. License termination is not an available sanction for merely hiring unauthorized workers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional violations, an employer acting in good faith need not fear the law’s sanctions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe harbors from liability when using E-Verify as required by the Arizona law. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibiting discrimination. There is no reason to suppose that Arizona employers will choose not to do so.

Speaking for the five members in III-A, the Chief finds that the Arizona law does not conflict with the federal scheme.

Moreover, Arizona’s use of E-Verify does not conflict with the federal scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of theemployee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebuttable presumption of compliance with the law.

In Part III-B, which Justice Thomas did not join, the Chief writes that Arizona’s law did not obstruct the aims of E-Verify.

Arizona’s requirement that employers use E-Verify in no way obstructs achieving the aims of the federal program. In fact, the Government has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Chamber’s claim that the Arizona law, and those like it, will overload the federal system.

I will need to parse further the spots where Thomas joined, and did not join.

Justice Breyer’s Dissent

Justice Breyer finds that IRCA preempts the state law, and the state law is not an exempted licensing law.

The federal Immigration Reform and Control Act of1986 (Act or IRCA) pre-empts “any State or local law imposing civil or criminal sanctions (other than throughlicensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens.” 8 U. S. C. §1324a(h)(2). The state law before us, the Legal Arizona Workers Act, imposes civil sanctions upon those who employ unauthorized aliens. See Ariz. Rev. Stat. Ann. §23–211 et seq. (West Supp. 2010). Thus the state law falls within the federal Act’s general pre-emption rule and is pre-empted—unless it also falls within that rule’s exception for “licensing and similar laws.” Unlike the Court, I do not believe the state law falls within this exception, and I consequently would hold it pre-empted.

Breyer does not find the term “license” to be as broad as the majority, and Arizona determined.

Congress did not intend its “licensing” language to create so broad an exemption, for doing so would permit States to eviscerate the federal Act’s preemption provision, indeed to subvert the Act itself, by undermining Congress’ efforts (1) to protect lawful workers from national-origin-based discrimination and (2) to protect lawful employers against erroneous prosecution or punishment.

Breyer quibbles with the majority over dictionary definitions of “licensing.” He finds three competing goals of the IRCA based on the legislative history:

First, it seeks to discourage American employers from hiring aliens not authorized to work in the United States. Second, Congress wished to avoid “placing an undue burden on employers,” id., at 90, and the Act seeks to prevent the “harassment” of “innocent employers,” Third, the Act seeks to prevent employers from disfavoring job applicants who appear foreign.

Unlike the majority, Breyer finds that the state and federal law are quite different, and “part company” beyond forbidding the employment of unauthorized aliens, and providing employers with a defense.

First, the state statute seriously threatens the federal Act’s anti discriminatory objectives by radically skewing the relevant penalties . . . Second, Arizona’s law subjects lawful employers to increased burdens and risks of erroneous prosecution.. . .
And that is my basic point. Either directly or through the uncertainty that it creates, the Arizona statute will impose additional burdens upon lawful employers and consequently lead those employers to erect ever stronger safeguards against the hiring of unauthorized aliens—without counterbalancing protection against unlawful discrimination. And by defining “licensing” so broadly, by bringing nearly all businesses within its scope, Arizona’s statute creates these effects statewide.

Justice Breyer notes that the likely intended, and actual aim, of this law is stopping the hiring of unauthorized aliens, and the expense of discrimination

Such laws might prove more effective in stopping the hiring of unauthorized aliens. But they are unlikely to doso consistent with Congress’ other critically important goals, in particular, Congress’ efforts to protect from discrimination legal workers who look or sound foreign. That is why we should read the federal exemption’s “licensing” laws as limited to those that involve the kind of licensing that, in the absence of this general state statute, would nonetheless have some significant relation to employment or hiring practices. Otherwise we read the federal “licensing” exception as authorizing a State to undermine, if not to swallow up, the federal pre-emption rule.

With respect to E-Verify, which is optional under the federal regime, but mandatory under the Arizona Law, Breyer finds the state law stands “as a significant “‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” and it is consequently pre-empted.”

In co-opting a federal program and changing the key terms under which Congress created that program, Arizona’s mandatory state law simply ignores both the federal language and the reasoning it reflects, thereby posing an “‘obstacle to the accomplishment’” of the objectives Congress’ statute evinces. Crosby, supra, at 373 (quoting Hines, supra, at 67)

Breyer pithily replies to the majority’s argument that mandating E-erify is not an obstacle to congressional purposes—his points basically boil down to the assertion that it is up to Congress, and not the Court, to determine what Congress thinks about a program (oh irony indeed).

The majority reaches a contrary conclusion by pointing out (1) that Congress has renewed the E-Verify program several times, each time expanding its coverage, to the point where it now encompasses all 50 States; (2) that the E-Verify database has become more accurate; (3) that the Executive Branch has itself mandated participation for federal contractors; and (4) that the statute’s language tells the Secretary of Homeland Security, not the States, to maintain the program as voluntary.

The short, and, I believe, conclusive answers to these objections are: (1) Congress has kept the language of the statute—and the voluntary nature of the program—the same throughout its program renewals. And it is up to Congress, not to Arizona or this Court, to decide when participation in the program should cease to be voluntary. . . . (2) The studies and reports have repeatedly found both (a) that the E-Verify program had achieved greater accuracy, but (b) that problems remain. And it is up to Congress, not to Arizona or this Court, to determine when the federally designed and federally run E-Verify program is ready for expansion.
(3) Federal contractors are a special group of employers, subject to many special requirements, who enter voluntarily into a special relation with the Government. For the Federal Government to mandate that a special group participate in the E-Verify program tells us little or nothing about the effects of a State’s mandating that nearly every employer within the State participate—as Arizona has done. And insofar as we have not determined whether the Executive was authorized by Congress to mandate E-Verify for federal contractors, it says nothing about Congress’ intent.
(4) There is no reason to imply negatively from language telling the Secretary not to make the program mandatory, permission for the States to do so.

I find it a bit rich that Justice Breyer hesitates reading into Congressional action, and inaction. This is one of his trademark jurisprudential techniques.

Justice Sotomayor’s Dissent

Justice Sotomayor’s dissent focuses the comprehensive scheme of the IRCA, and finds that the majority’s interpretation of the savings clause cannot be reconciled with this congressional intent. Further, Sotomayor would find that a “final federal determination” must be made before a state can impose any sanctions.

This reading of the saving clause cannot be reconciled with the rest of IRCA’s comprehensive scheme. Having constructed a federal mechanism for determining whether someone has knowingly employed an unauthorized alien, and having withheld from the States the information necessary to make that determination, Congress could not plausibly have intended for the saving clause to operate in the way the majority reads it to do. When viewed in context, the saving clause can only be understood to preserve States’ authority to impose licensing sanctions after a final federal determination that a person has violated IRCA by knowingly employing an unauthorized alien. Because the Legal Arizona Workers Act instead creates a separate state mechanism for Arizona state courts to determine whether a person has employed an unauthorized alien, I would hold that it falls outside the saving clause and is pre-empted.

Sotomayor would also find the mandatory usage of E-Verify to be preempted.

I would also hold that federal law pre-empts the provision of the Arizona Act making mandatory the use of E-Verify, the federal electronic verification system. By requiring Arizona employers to use E-Verify, Arizona has effectively made a decision for Congress regarding use of a federal resource, in contravention of the significant policy objectives motivating Congress’ decision to make participation in the E-Verify program voluntary.

Justice Sotomayor alone finds that a federal determination must be made prior to imposing any sanctions.

To render IRCA’s saving clause consistent with the statutory scheme, I read the saving clause to permit States to impose licensing sanctions following a final federal determination that a person has violated §1324a(a)(1)(A) by knowingly hiring, recruiting, or refer ring for a fee an unauthorized alien.8

Sotomayor agrees with Breyer’s dissenting opinion about implied preemption but writes separately to “add a few additional observations.” Mainly, she seeks to distinguish this case from implied preemption cases like Mazda v. Williamson, that permits regulations between private parties and the state, not with the federal government.

As we have recently recognized, that a state law makes mandatory something that federal law makes voluntary does not mean, in and of itself, that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,”
…
This case, however, is readily distinguishable from cases like Williamson, in which state law regulates relationships between private parties. Here, the Arizona Act directly regulates the relationship between the Federal Government and private parties by mandating use of a federally created and administered resource. This case thus implicates the “uniquely federal interes[t]” in managing use of a federal resource.

A sharp 5-4 opinion, with Justice Kennedy writing for Ginsburg, Breyer, Sotomayor, and Kagan.

This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation ofprisoners’ constitutional rights. The order of the three-judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed.

Justice Scalia penned a stinging dissent, joined only by Justice Thomas:

Today the Court affirms what is perhaps the most radi-cal injunction issued by a court in our Nation’s history: anorder requiring California to release the staggering num-ber of 46,000 convicted criminals.There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition andcommon sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageousresult. Today, quite to the contrary, the Court disregardsstringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov-erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

From Justice Alito’s dissent, joined by the Chief:

The decree in this case is a perfect example of whatthe Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, was enacted to prevent.The Constitution does not give federal judges the au-thority to run state penal systems. Decisions regardingstate prisons have profound public safety and financial implications, and the States are generally free to makethese decisions as they choose. See Turner v. Safley, 482U. S. 78, 85 (1987).The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’snecessities.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981).

Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution arebeyond the federal courts’ reach.In this case, a three-judge court exceeded its authorityunder the Constitution and the PLRA. The court ordered a radical reduction in the California prison population without finding that the current population level violates the Constitution.

The opinion is 91 total pages. This may take a while to parse through. Plus appendixes B and C have photos of prison over-crowding!

 

Justice Kennedy’s Majority Opinion

The Court found that the three-judge panel’s mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Here is the test the majority put forward to assess the validity of a release order:

Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” §3626(a)(3)(E); and that the relief is “narrowly drawn, extends no fur-ther than necessary. . . , and is the least intrusive means necessary to correct the violation,” §3626(a)(1)(A). The court must give “substan-tial weight to any adverse impact on public safety or the operation ofa criminal justice system caused by the relief.” Ibid. Its legal deter-minations are reviewed de novo, but its factual findings are reviewed for clear error.

Based on this standard, the Court found that the lower court acted reasonably in covening the three-judge court.

It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require thatcrowding be the only cause, the PLRA would have said so.

Kennedy also finds that the release order was “narrowly drawn.”

The prospective relief ordered here was narrowly drawn, ex-tended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation.
…
While narrow tailoring requires a “ ‘ “fit” between the [rem-edy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not in-valid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to de-termine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad be-cause it encompasses the entire prison system, rather than sepa-rately assessing each institution’s need for a population limit.

Remarkably, Kennedy did not find the 2-year deadline for releasing 46,000 prisoners unreasonable, but suggested an equitable extension may be in order. Wow

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 takes exception with this note, and claims it is not so much as a suggestion as a “warning shot across the bow,” which is tantamount to “intellectual bankruptcy.”

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?

Justice Scalia’s Dissenting Opinion

The opening paragraphs of this opinion are quite ominous. I haven’t seen Nino this pissed about security issues since some of the detainee cases.

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: anorder requiring California to release the staggering number of 46,000 convicted criminals.
There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition andcommon sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageousresult. Today, quite to the contrary, the Court disregardsstringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

Scalia takes aim at the Court’s “evolving standards of decency” jurisprudence, and notes it does not permit the Courts to control the operation of prisons:

But our judgeempowering “evolving standards of decency” jurisprudence(with which, by the way, I heartily disagree, see, e.g., Roper v. Simmons, 543 U. S. 551, 615–616 (2005) (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools,prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care.

Scalia takes note with the large-size of the class—46,000 employees—and notes that only a fraction of them could possibly be aggrieved by the overcrowding. Rather, they will be pumped up!

It is also worth noting the peculiarity that the vastmajority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

Scalia also attacks the findings of the three District Judges, and the notion that they made their findings based solely on the facts, and not their personal beliefs:

But 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 fact finding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three Distric tJudges now govern the operation of California’s penal system.

I can definitely see this language being applied to Judge Walker’s finding of facts in the prop 8 case.

Scalia continues ripping into the “factual findings.”

It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.
But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 1 witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.

In a special bench slap of the Ninth Court, Scalia notes that the Court has reversed CA9 4 terms on habeas, this term alone.

Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual California prisoners four times this Term alone. . . .
And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.

Brief typo on p. p. 70 of the PDF, p. 12 of the dissent, Scalia wrote:

If it is nothing but a polite remainder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary.

Should be

If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary.

Scalia closes, by noting that the order ignore PLRA, and “all sound conception of the proper role of judges.”

The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18
U. S. C. §3626(a)(1)(A). It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges.

Justice Alito’s Dissenting Opinion

Alito’s dissent, joined only by the Chief focuses on the “profound public safety and financial implications” of the order.

The Constitution does not give federal judges the authority to run state penal systems. Decisions regardingstate prisons have profound public safety and financial implications, and the States are generally free to makethese decisions as they choose. See Turner v. Safley, 482
U. S. 78, 85 (1987).
The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’snecessities.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution arebeyond the federal courts’ reach.

This mirrors Alito’s comments at oral arguments, as I noted in the Constitutionality of Social Cost

Relatedly, during oral arguments in Schwarzenegger v. Plata, Justice Alito expressed concern about the social costs of a court’s prison release order whereby 40,000 prisoners would be released. He questioned
whether the released prisoners would “contribute[] to an increase in crime,” citing a different release in Philadelphia that yielded “cost[s]” in terms of the “number of murders, the number of rapes, the number of armed robberies, the number of assaults.”137

Alito continues:

And the three-judge court violated the PLRA’s critical command that any court contemplating a prisoner release order must give “substantial weight to any adverse impact on public safety.” 18
U. S. C. §3626(a)(1)(A). The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in holding that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety.

Alito finds that the alleged violations at the prisons could certainly be remedied with less dramatic relief than 46,000 released prisoners.

It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today’s opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority hereinclude the following: “‘[e]xam tables and counter tops, where prisoners with . . . communicable diseases are treated, [are] not routinely disinfected,’” ante, at 10; medical facilities “‘are in an abysmal state of disrepair,’” ibid.; medications “‘are too often not available when needed,’” ante, at 10–11; “‘[b]asic medical equipment is often not available or used,’” ante, at 10; prisons “would ‘hire any doctor who had “a license, a pulse and a pair of shoes,”’” ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a–121a(citing, among other things, staffing vacancies, too few beds for mentally ill prisoners, and an outmoded recordsmanagement system).

Is it plausible that none of these deficiencies can beremedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?

Alito finds that the order would not even remedy the issue, as those released need not be among the aggrieved class of plaintiffs.

I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems. Indeed, it is apparent that the prisoner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system’s overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system.

Part III of Alito’s dissent is focused on impacts on public safety, or as I would call it, the constitutionality of social cost. Alito references a prison release program in Philadelphia, which he alluded to during oral arguments.

Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience.10

Despite the record of past prisoner release orders, thethree-judge court in this case concluded that loosing46,000 criminals would not produce a tally like that inPhiladelphia and would actually improve public safety. Juris. App. 248a–249a. In reaching this debatable conclusion, the three-judge court relied on the testimony ofselected experts, id., at 248a, and the majority now defersto what it characterizes as the lower court’s findings offact on this controversial public policy issue, ante, at 15, 19–20, 24

Alito criticizes the Court for failing to consider the possible social consequences of this decision.

The particular three-judge court convened in this case was “confident” that releasing 46,000 prisoners pursuant to its plan “would in fact benefit public safety.” Juris. App. 248a–249a. According to that court, “overwhelming evidence” supported this purported finding. Id., at 232a. But a more cautious court, less bent on implementing itsown criminal justice agenda, would have at least acknowledged that the consequences of this massive prisonerrelease cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this release will produce results similar to those under prior court-ordered population caps.

Alito has a bit of a causation/correlation mixup, when he tries to link the increase of prison population in California with the decrease of violent crime. Post hoc ergo propert hoc.

After all, the sharp increase in the California prison population that the three judge court lamented, see id., at 254a, has been accompanied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect.

11From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Similarly, in the United States from 1992 to 2009, the violent crime rate per100,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent.Dept. of Justice, Federal Bureau of Investigation, Uniform CrimeReporting Statistics, http://www.ucrdatatool.gov. 12According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007)

In sum, the lower court essentially disregarded threats to public safety:

Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court discharged its obligation to “give substantial weight to any adverse impact on public safety,” §3626(a)(1)(A), by deferring to officials who did not believe the reduction could be accomplished in a safe manner. I do not believe the PLRA’s public-safety requirement is so trivial
…

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.

This last line parallel’s Scalia’s closing thought in Boumedienne, that the Court’s opinion “will almost certainly cause more
Americans to be killed.”136

I just uploaded an updated version of The Constitutionality of Social Cost to SSRN. It should be published in the Harvard Journal of Law & Public Policy at some point this summer. My thanks to the fantastic editors at that Journal for providing some brilliant comments, and helping to refine my argument.

At 95 pages and 558 footnotes, this is my longest article, exceeding the Blackman-Shapiro production, Pandora’s Box, which had 87 pages and a mere 453 footnotes–though Ilya would tell you it was too long as is :). I am quite proud of this piece.

I will be using this as my Job Talk piece for the AALS hiring market, so I’m open for any questions (and especially challenges).

Here is the abstract:

During the Passover Seder, it is customary in the Jewish faith for the youngest child at the table to ask a series of four questions that begins with, “Why is this night different from all other nights?” To understand the future of the Second Amendment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

At first blush, this may make sense. Guns can be dangerous if misused. As Justice Breyer noted in McDonald, “[T]he carrying of arms . . . often puts others’ lives at risk.” Because a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” when construing the Second Amendment, it would seem straightforward that courts take into consideration the potential social cost, or presumed negative externalities, of private ownership of firearms. So obvious, in fact, that courts and pundits perfunctorily gloss over the constitutionality of limiting liberty in order to minimize social costs. This judicial oversight is glaring, and it has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.

Although the Second Amendment has been singled out from its brethren in the Bill of Rights as the most dangerous right, it is not the only dangerous right. The Supreme Court has developed over a century of jurisprudence to deal with forms of liberty that yield negative externalities. The right to speak freely is balanced with the possible harm that can result from people preaching hate, violence, intolerance, and even fomenting revolution. The freedom of the press permits the media to report on matters that may harm national security. The freedom of association allows people to congregate to advocate for certain types of violence . The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures enables the possession of the fruits and instrumentalities of crime with impunity. Inculpatory evidence seized in violation of this right is generally inadmissible during trial, permitting crimes to go unpunished. Likewise, a violation of a person’s Miranda rights renders certain confessions—even an uncoerced inculpatory confession—inadmissible.

Procedural rights during the criminal trial—including the right to grand jury indictment, the right against self-incrimination, the right against double jeopardy, the right of compulsory process, the right of confrontation, the right of a speedy and public trial, and the right of trial by jury—all make the prosecution of culpable defendants significantly harder. The Due Process Clause, which imposes limitations on all government actions, places the burden of proof beyond a reasonable doubt on the prosecution. The right to non-excessive bail and reasonable fines make it easier for suspects to avoid prison during prosecutions and may allow them to abscond before trial. The right against cruel and unusual punishments removes certain forms of retribution from the quiver of the state, thereby limiting the range of punishments for those found guilty of a crime. The right of habeas corpus ensures that a person—however dangerous—cannot be indefinitely without proper procedures. Liberty’s harm to society takes many forms—not just from the exercise of the right to keep and bear arms.

These precedents show how the Court balances freedom and the harm that may result from its exercise. Although a “primary concern of every government [is] a concern for the safety and indeed the lives of its citizens,” this concern is not constitutionally sacrosanct.

This Article explores the constitutional dimensions of the social cost of liberty. Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently

This Article proceeds in five parts. Part I explores a Coasean view of freedom that balances liberties and externalities, and introduces the concept of the constitutionality of social cost. Part II provides an overview of the competing views of social cost in Heller and McDonald, focusing on Justice Breyer’s balancing test and Justice Scalia’s pragmatic dicta. Part III considers the loneliness of the Second Amendment in the Bill of Rights and confronts many of the arguments of the dissenting Justices that the majority did not refute. Part IV views the Second Amendment through the lens of the constitutionality of social cost and considers the “wide variety of constitutional contexts [in which the Court] found . . . public-safety concerns sufficiently forceful to justify restrictions on individual liberties.”

Building on Parts I–IV, Part V provides a roadmap for the development of Second Amendment jurisprudence going forward. Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

And the conclusion:

Although the historical debate over the Second Amendment is likely to rage for some time, the future of this jurisprudential skirmish will be waged on a battlefield with two fronts—liberty and social costs. The frontier will ebb and flow between the two opposing sides. This article does not purport to set the boundaries. Rather, it aims to propose rules of engagement, and ensure a fair fight. The purpose of this article is to redefine our understanding of the Second Amendment in the context of the other provisions in the Bill of Rights. If our nascent Second Amendment jurisprudence is to evolve, we must leave behind our pre-Heller view of the constitutionality of gun control laws and start treating the right to keep and bear arms like the other individual rights in our Constitution. The Second Amendment should be lonely no more.

 

The MP3 For oral arguments for Sorrell v. IMS Health is now online. I blogged before about Tom Goldstein, who argued for the Respondent, and his sassy advocacy. Listen to it yourself here. Tom starts at 31:14.

[podcast]http://www.supremecourt.gov/media/audio/mp3files/10-779.mp3[/podcast]

In particular, I found this rapport a bit snarky:

JUSTICE BREYER: That’s where I was going.
MR. GOLDSTEIN: Okay.
JUSTICE BREYER: I chose an example that’s beyond your case.
MR. GOLDSTEIN: That’s why it’s called a hypothetical.

LOL.

Justice Breyer seemed to get a little testy later in the arguments, and quipped whether a regulated industry can even exist. Goldstein took it in stride.

JUSTICE BREYER: It used to be true there was something called a regulated industry.
MR. GOLDSTEIN: Yes.
JUSTICE BREYER: And selling was within activity among many.
MR. GOLDSTEIN: Sure.
JUSTICE BREYER: And there were lots of regulations that could be imposed upon selling.
MR. GOLDSTEIN: Sure, right.
JUSTICE BREYER: Are you saying that all those should be reexamined?
MR. GOLDSTEIN: I — I thankfully am not.

Update: OK, I just finished listening to the MP3. Wow. The transcripts really do not do Tom’s performance justice. In the “hypothetical question” exchange with Justice Breyer, he slides in “That’s why it’s called a hypothetical” under his breath, really quickly. He barely enunciates the end, as if he realized he shouldn’t say it. Then, smugly, he laughs.

In the second exchange I quoted, the interjections of “sure” and “sure, right” are not during pauses in Breyer’s question. Breyer is talking, and Tom talks over him to say “sure.”

The entire opening segment where he directs the Justices to turn to specific pages sounds awfully patronizing.

Damn.

 

In AT&T Mobility v. Concepion the Court, 5-4 per Justice Scalia held that the Federal Arbitration Act pre-empts a California rule that found that a ban on class action arbitration is unconscionable. The rule “stands as an obstacle to the accomplishment and exe-cution of the full purposes and objectives of Congress,” and is pre-empted by the FAA. Justice Thomas filed a concurring opinion. Justice Breyer dissented, joined by Ginsburg, Sotomayor, and Kagan. The pro-business Roberts Court is no doubt back, I predict detractors will broadly proclaim, ignoring all those other cases this term where it was on vacation. (see here, here, and here). I will update this page as I read through the opinion. For what it’s worth AT&T went .500 at SCOTUS, winning this case and losing FCC v. AT&T.

Majority Opinion

Scalia’s lays out the analytical framework:

When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, 552 U. S. 346, 353 (2008). But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. . . .
We largely agree. Although §2’s saving clause preservesgenerally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand asan obstacle to the accomplishment of the FAA’s objectives.
…
The overarchingpurpose of the FAA, evident in the text of §§2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.

Scalia finds the purpose of the FAA “readily apparent from the . . . text.”

The California rule will interfere with arbitration of all contracts of adhesion (just about all of them).

California’s Discover Bank rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion contracts, Discover Bank, 36 Cal. 4th, at 162–163, 113 P. 3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6

In a footnote Scalia calls out Breyer in dissent from relying on tenuous legislative history—“ statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover.”

5Relying upon nothing more indicative of congressional understanding than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact . . . [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] nevertheless held . . . that agreements to arbitrate in that context are enforceable.” Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 33 (1991); see also id., at 32–33 (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration.

Scalia also had a few comments about class action arbitration, in general:

Although we have had little occasion to examine classwide arbitration, our decision in Stolt-Nielsen is instructive. In that case we held that an arbitration panel exceeded its power under §10(a)(4) of the FAA by imposingclass procedures based on policy judgments rather than the arbitration agreement itself or some background principle of contract law that would affect its interpretation. 559 U. S., at ___ (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow thembecause the “changes brought about by the shift frombilateral arbitration to class-action arbitration” are “fundamental.” Id., at ___ (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different proceduresand involving higher stakes. Confidentiality becomesmore difficult. And while it is theoretically possible toselect an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generallyknowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA.

Here is Scalia’s onclusion:

Because it “stands as an obstacle to the accomplishmen tand execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U. S. 52, 67 (1941), California’s Discover Bank rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice Thomas’ Concurring Opinion

Justice Thomas wrote “separately to explain how [he] would find that limit in the FAA’s text.”

As I would read it, the FAA requiresthat an agreement to arbitrate be enforced unless a partysuccessfully challenges the formation of the arbitration agreement, such as by proving fraud or duress. 9 U. S. C. §§2, 4. Under this reading, I would reverse the Court of Appeals because a district court cannot follow both the FAA and the Discover Bank rule, which does not relate to defects in the making of an agreement.

Thomas reiterates his position from Wyeth, and writes that “although I adhere to my views on purposes-and-objectives pre-emption, see Wyeth v. Levine, 555 U. S. 555, ___ (2009) (opinion concurring in judgment), I reluctantly join the Court’s opinion.”

Justice Breyer’s Dissenting Opinion.

Justice Breyer’s dissent takes a purposive approach to pre-emption, and finds that the California rule is consistent with the objective of the FAA.

The Federal Arbitration Act says that an arbitrationagreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). California law sets forth certain circumstances in which “class action waivers” in any contract are unenforceable. In my view, this rule of state law is consistentwith the federal Act’s language and primary objective. It does not “stan[d] as an obstacle” to the Act’s “accomplishment and execution.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941). And the Court is wrong to hold that the federal Act pre-empts the rule of state law.

Yesterday I commented on a Sotomay-Breyer concurring opinion, which focused on how the purposes of Congress today to understand an act passed in 1868. Today, Justice Breyer intimated the same notion:

Regardless, if neither the history nor present practice suggests that class arbitration is fundamentally incompatible with arbitration itself, then on what basis can themajority hold California’s law pre-empted?

This suggests that how Congress interprets the FAA today provides meaning of how the enacting Congress (in 1925) interpreted it.

Scalia directly responds to this part, and notes that class action arbitration did not exist in 1925. How could today’s intent possibly affect the old intent?

We find it unlikely that in passing the FAA Congressmeant to leave the disposition of these procedural requirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover Bank, class arbitration is a “relatively recent development.” 36 Cal. 4th, at 163, 113 P. 3d, at 1110. And it is at the very least odd to think that an arbitratorwould be entrusted with ensuring that third parties’ dueprocess rights are satisfied.

Scalia focuses on the intent of the enacting Congress only:

We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow state courts to force such a decision

Breyer closes with a snipe at what he sees as pseudo-federalism in the pre-emption context.

action”). But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach.
With respect, I dissent.

Et tu Brutus? (Yes I know it is Brute, but Brutus was an anti-federalist, so it works here).