A Voice From the Past

NY Times
Now that the Supreme Court has given California the choice of shrinking its prison population drastically or making sufficient room for the prisoners it has, attention has naturally turned to how the financially strapped state will respond. But that focus shouldn’t obscure the remarkable nature of what the court did last week when it upheld a lower court’s order requiring California to reduce its prison population to no more than 137.5 percent of capacity within two years to cure overcrowding so severe that it amounts to cruel and unusual punishment.

Justice Kennedy’s opinion evokes the Supreme Court of the civil rights era.

As I read the majority opinion, I had the eerie feeling of entering a time warp, of being whisked back to an earlier era, one that preceded my own decades of close encounters with the Supreme Court. It was a time when federal judges took charge of state and local institutions — prisons, school systems, hospitals, child welfare agencies — in order to remedy grievous constitutional harms. It was an era when an assertion embedded in a Supreme Court opinion that “courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration” would scarcely have raised an eyebrow, so commonplace an observation would it have seemed.
Those were Justice Anthony M. Kennedy’s words in his majority opinion in the California case. I’ll repeat: remarkable.

By the time I began covering the court in the late 1970s, the sun was setting rapidly on the era of the “structural injunction,” the term for an order by which a court takes control of a public institution. (“[A] declaration that the judge will henceforth manage the reconstruction of an ongoing social institution,” is how Owen M. Fiss of Yale Law School defined it in a 1978 book, “The Civil Rights Injunction”).