Historic Arguments in the California Prison Overcrowding Cases – A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.

Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% — that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
JUSTICE ALITO: Mr. –
MR. PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.