I’ve been thinking about last week’s Supreme Court decision in Johnson v. California, which held that state prisons can’t segregate new inmates by race (ostensibly for the purpose of reducing gang violence) unless that classification satisfies the strict scrutiny test. (The Court remanded to the lower court for that analysis, but I have little doubt the state will lose under strict scrutiny.) Here’s a nice summary from Lyle Denniston at SCOTUSBlog.
I’ll admit that I have merely browsed the opinions, and haven’t given them strict scrutiny myself. And it’s been a long time since I did any serious thinking about equal protection analysis. But when I read them, especially Justice O’Connor’s opinion for the majority, I had a question: What is the injury? I didn’t see it clearly spelled out, and I had to ponder over it a while. The Court cited to Brown v. Board of Education for the notion that separation is inherently wrong, but in that case the injury was obvious. There, the segregation had the effect of sticking black kids in inferior schools. And even if the resources were exactly equal — which of course they weren’t — the social interaction in a desegregated school was enough of a benefit that going without it was an injury. But in the California prisons, as far as I know, the cells were the same, and everyone is treated the same, except that people of different races and ethnic groups went through different doors. I don’t think this is even as bad as having two identical water fountains right next to each other, one marked “white” and one marked “colored,” even though the facilities aren’t any different. This is more like having one water fountain, and telling the thirsty to line up in white/black/white/black order. So, because, from everything I can tell, every prisoner was treated the same, the injury had to be the mere fact of classification by race. After reading Prof. Balkin’s take on it, I guess I could rephrase it to say that the injury is the loss of dignity and the stigmatization of being reduced to a check-a-box racial identity. (However, I didn’t see anything to indicate that the state would rather use the race proxy if it had evidence of actual gang membership, if, say, two members of the same race were in opposing gangs — surely the prison would separate them for that reason rather than rely merely on race and keep them together.)
But anyway, it’s not as if the black or Hispanic prisoners were sent to inferior cells or given less access to certain benefits than white inmates. I don’t mean to denigrate that dignitary harm — which I’m sure could be bad in cases, even if it doesn’t rise to the level of stigmatization black schoolchildren felt before Brown — but I can see why Justice O’Connor might evade the issue. If the mere classification by race, in a prison system with lots of racial gangs, and when prisoners don’t seem to suffer unduly because of it, is unconstitutional, then why wouldn’t the same be true in the law school admissions setting? Justice O’Connor thought racial classifications were okay in Grutter, even when they had the effect of causing some kids not to be admitted to a college or graduate school they were otherwise qualified for — which is certainly more of an injury than being housed in one cell versus another identical one. If someone who had never heard of these cases read them together, he or she might reasonably wonder what case in the interim overruled one of them. Tom Smith at The Right Coast puts it a little more cuttingly, but Justice O’Connor’s opinion and “reasoning” are a joke.
For what it’s worth, I think a more reasonable course is to subject benign classifications in prisons (that is, where there is absolutely no evidence of disparate treatment) to Turner’s less-stringent review, which is more deferential to prison officials. I would have agreed with Justice Stevens, however, that this system fails even that test, simply because there’s so little reason for it, and it could end up promoting gang violence as much as thwarting it. It is often said that strict scrutiny review is “strict in theory, fatal in fact.” Turner review could accurately be called “deferential in theory, rubber-stamp in fact,” but that’s true of rational-basis review generally. But every once in a while some state action is found to be irrational. Yes, perhaps I am overlooking something in the opinion about the harm suffered by these classified inmates. But at least applying Turner saves one the embarrassment of trying to reconcile Johnson with Grutter. And it would have the added effect of giving Turner some teeth, which may be what Justice O’Conner (who wrote Turner) wanted to avoid in the first place.