Jack Balkin, Yale Law School:

"Today, in Johnson v. California, the Supreme Court held that California's practice of segregating newly arrived prisoners by race for up to 60 days was subject to strict scrutiny. Justice O'Connor wrote the majority opinion. Justices Scalia and Thomas dissented, arguing that strict scrutiny shouldn't apply in prison settings; instead the Court should use the very relaxed standard of Turner v. Safely. Turner says that prisoner rights can be abridged whenever the regulation is reasonably related to legitimate penological interests. Justice O'Connor argued that Turner does not apply to racial discrimination. She pointed out that under the Turner standard, there would be no obvious limit to how much of a prison could be segregated, as long as prison officials asserted that it might have some benefit and might decrease the risk of racial violence. O'Connor pointed out that Turner doesn't require any inquiry into whether more limited policies or race neutral alternatives would do just as well.

I thought that the Court would subject this policy to strict scrutiny. However, I am mystified about why Thomas and Scalia are dissenting in this case. I had thought that they had strongly principled objections to racial classifications because these classifications fail to respect individual dignity, because they fail to treat individuals as individuals, and because they stigmatize and stereotype people according to their race, even when the classification is made from the purest of motives. I don't happen to agree with their views in the affirmative action cases, but at least I respect a principled stand when I see one. But there is nothing of that principled objection in this case. Instead, it appears that their rhetoric only applies when they are opposing affirmative action policies designed to assist racial minorities. Prisoners, it seems, have no rights which the state is bound to respect. Of course, Thomas has never been interested in prisoner's rights, but one would think that his very strong objections to even "benign" racial classification would count for something here.

In saying that Thomas and Scalia aren't being consistent, I do not mean to suggest that O'Connor is. As Thomas correctly points out, her refusal to defer to prison administrators in Johnson is in tension with her deference to university administrators in Grutter. And there are passages in today's opinion that are, frankly, laughable given what she wrote in Grutter. The point is that I don't really expect doctrinal consistency from O'Connor– I expect pragmatic case manipulation designed to hit the precise center of current public opinion. Scalia and Thomas, on the other hand, have always struck me as true believers. But cases like this one seem to suggest that they are doing precisely what they accuse liberals of doing– writing their own personal predilections about policy into constitutional law.

Speaking of liberals, at least Justices Ginsburg, Breyer and Souter have a principle that distinguishes this case from Grutter. It is the antisubordination principle– racial classifications are suspect because they help perpetuate the subordination of racial groups. Where the majority acts to undo the effects of past subordination, courts can apply somewhat less scrutiny (although not minimal scrutiny) because what the state is doing is not inconsistent with the goal of antisubordination. That explains the Court's deferential attitude toward admissions committees in Grutter. However, when the state uses racial classifications for mere administrative convenience, as in this case, its goals are orthogonal to alleviating social subordination, and the usual rule of strict scrutiny should apply. Obviously, one could object to this line of argument at several places, but on the whole it seems somewhat more principled than what the other Justices are doing." [February 24, 2005; Balkinization has the post.]