As Andrew Cohen notes, Scalia’s recent dissent in the California prison overcrowding case is classic Scalia. And, by this, I mean it’s an opinion with a lot of showy phrases used to assemble an argument that collapses on the slightest inspection. A couple points:
- Holding out the possibility of a stay to the order to reduce overcrowding was perfectly logical, since increasing prison capacity isn’t necessarily something can be done overnight. If California had a clear plan in place — such as starting prison construction that wasn’t due to be completed until next year — a stay would be appropriate. But California is not in fact doing any such thing. It’s not appropriate to grant a stay because California has just decided it’s too expensive to comply with the Bill of Rights.
- So this argument isn’t really about a stay; it’s an argument that the courts wrong to enforce the Eighth Amendment and compel the state of California to substantially reduce the appalling overcrowding in its prisons. And Scalia’s argument remains just as unpersuasive as it’s always been. It’s classic wealthy suburban Republicanism: we’re supposed to believe that every single prisoner who might be released under the court order poses a massive threat to public safety, but not so massive a threat that anybody should have to pay a dime in extra taxes or anything. Instead, the “solution” should just be the systematic violation of human rights. Well, to paraphrase what one overrated justice one said, the bluff has been called, and the tea party has nary a pair to lay on the table.