When inmates are taken in to California prisons, they are separated on the basis of race for a period of time, as a way of cutting down on the racial violence between prisoners. In Johnson v. California, (click and scroll down) the Supreme Court will decide whether that’s constitutional. But there’s a more fundamental issue involved in Johnson, and that’s the proper “level of scrutiny.”
What that means for the non-lawyers is, the Supreme Court has decided that some rights are more important than others. Your right to travel from state to state, for instance, is “fundamental.” Your right to own property isn’t. Your right to an abortion is fundamental. Your right to earn an honest living isn’t. Likewise, when government discriminates between people, sometimes that’s considered worse than other times. When government discriminates based on people’s race, that is considered very bad, so the Court employs “strict scrutiny,” which means that the government’s actions must be “narrowly tailored to advance a compelling government interest.” When government discriminates on other bases (like, discriminates between rich and poor), then the Court only employs “rational basis scrutiny,” meaning that the government’s act has to be “rationally related to a legitimate government interest.” A law is almost never constitutional under “strict scrutiny,” and a law is almost always okay under “rational basis scrutiny.”
The problem is that in cases involving prisons, the Court has said it always applies “rational basis.” So prison administrators can do just about anything they want to prisoners. On the other hand, when government discriminates based on race, that calls for “strict scrutiny.” So which one should be applied in this case?
This is an important issue because in some recent cases, the Court has been watering down the “strict scrutiny” test. Most notably, in Grutter v. Bollinger, the Court claimed to be employing “strict scrutiny” to the University of Michigan’s racist admissions policies—but then it “deferred” to the University’s judgment. But you can’t defer when you employ “strict scrutiny.” To defer means that the Court stands aside and lets someone else make the decision. Well, that kind of scrutiny isn’t strict—it’s loose! And then the Court did it again in McConnell v. FEC. It was reviewing a law that infringed on the freedom of speech (which requires strict scrutiny) but then it “deferred” again, meaning that it really employed “rational basis.”
Remember, the government (almost) always wins under “rational basis,” so when we’re talking about a law that limits freedom of speech, we’re talking dangerous stuff. In fact, in just the short time since Grutter was decided, at least two circuit courts have held that it permits racial discrimination in public employment and contracting. See Sherbrooke Turf, Inc. v. Minn. Dep’t. of Transp., 345 F.3d 964, 972 (8th CIr. 2003); Petit v. Chicago, 352 F.3d 1111 (7th Cir. 2003). See also Berkley v. United States, 59 Fed. Cl. 675, 683 (2004); Women’s Medical Professional Corp. v. Taft, 353 F.3d 436, 444 (6th Cir. 2003). But the harsh “strict scrutiny” test was first invented precisely to prevent government from discriminating on the basis of race. So the Court’s willingness to defer when supposedly applying strict scrutiny ought to scare us.
In an amicus brief I wrote for the Pacific Legal Foundation, I urged the Court not to water down strict scrutiny any more. If it upholds the California system of racial segregation of prisoners—which I think is one of those things that might be a sensible idea, but is still unconstitutional—then it ought not to pretend to apply strict scrutiny. And if it applies strict scrutiny, then it ought not to defer to the prison administrators.
The case was argued on November 2, so we have to sit and wait for the decision now....