Strict Scrutiny in Prisons

The Court today in Johnson v. California held that a California unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility must pass strict scrutiny review.

Justice O'Connor's opinion holds that ALL racial classifications are subject to strict scrutiny. Citing Croson, she writes that "there is simply no way of determining . . . what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." The court explicitly refused to relax the scrutiny in the prison context:

When government officials are permitted to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored, society as a whole suffers.

. . . searching judicial review of racial classifications is necessary to guard against invidious discrimination.

. . . The necessities of prison security and discipline are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities.

Justice Ginsburg's concurrence is interesting. She reminds us that she doesn't think that all forms of race discrimination gets strictu scrutiny, citing her language in Bollinger:

Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.

Justice Thomas, joined by Scalia, disagrees that these classifications should even get strict scrutiny:

[T]he majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls.

I don't understand why the deference Justice Thomas is asking for has to be in the standard of review, rather than in the narrow tailoring. I think that the system the prison is using should be, in the end, upheld. Justice Thomas describes the system in considerable detail and makes a strong argument that the system is both necessary and does a good job of avoiding overuse of the discrimination. But I think he might be getting ahead of himself.

The majority doesn't say that the system is unconstitutional, only that it must pass strict scrutiny. All they are doing is saying that the risk of irrational and harmful discrimination in the prison system is high enough that the Court should conduct searching review.

I guess I just agree that the risks of harmful discrimination in prisons are high such that I have no problem with the Court conducting a more searching review. I would find California's interest in avoiding gang fights in prisons obviously compelling, and a system that does a good job dividing people up according to race gangs, not just race, narrowly tailored.