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Johnson v. CA Revisited

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In the comments to my post about the recent California prison segregation case, Mark Kleiman notes that my focus on Thomas and Scalia’s misadventures in doctrinal bad faith sidestep the important consequences of the decision, certainly a fair point. Prof. Kleiman feels strongly that the decision was incorrect, and he makes a strong case. I am, at least, convinced that my tentative endorsement of Stevens’s dissent (which categorically opposed any state segregation policy) was wrong. I’m not convinced by Thomas’s argument that the case should fall under rational basis scrutiny, and I think state segregation places a very heavy burden of proof on the state. But (as Thomas suggests) the policy may well be defensible even if strict scrutiny is applied. Certainly, there’s no question that a compelling state interest is at stake; the only question is whether the policy is necessary to diminishing prison violence. Like Lindsay Beyerstein, I see this as an empirical question. I don’t know enough to judge, but certainly if Prof. Kleiman is right (and he’s an expert in the field) then I think the lower courts should uphold the policy despite the application of strict scrutiny. But I also think that it’s worth pointing out that the erstwhile belief of Thomas and Scalia that the Constitution is “color-blind” is not only not compelled by the text and contrary to the history of the 14th Amendment, but also completely unworkable in practice. To support Thomas in this case is to reject most of his previous jurisprudence on the subject.

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