Judicial Activism and the Brown v. Plata Decision of May 23, 2011 | Eastern North Carolina Now

    The question before the Court in Swann was whether federal courts were within their constitutional authority to come up with remedies to overcome state-imposed segregation. In a unanimous decision, the Supreme Court held that once violations of previous mandates directed at school desegregation had occurred, the scope of district courts' equitable powers to remedy past wrongs were broad and flexible. The Court ruled that: (1) remedial plans were to be judged by their effectiveness, and the use of mathematical ratios or quotas (racial quotas) were legitimate "starting points" for solutions; (2) predominantly or exclusively black schools required close scrutiny by courts; (3) the creation of non-contiguous school districts, as interim corrective measures, was within the courts' remedial powers; and (4) busing was an acceptable remedy to reach desegregation status in particular schools. The Supreme Court finally made it clear to what extent the federal government would go to remedy instances of intentional segregation. Once school districts had committed violations of previous mandates (bad faith) aimed at desegregating schools, they would be subject to the "broad and flexible" equitable powers of district courts to remedy those past wrongs. Such plans could include the use of mathematical ratios or racial quotas and could include busing.

    [Note that Milliken v. Bradley, in 1974, a case dealing with the desegregation busing plan across district lines among 53 school districts in metropolitan Detroit, set important limitations on busing. Milliken held that forced remedies such as busing could extend across district lines only where there was actual evidence that multiple districts had deliberately engaged in a policy of segregation].

    Roe v. Wade, (1973)

    It was the Roe v. Wade decision which announced a new fundamental right... the right of a woman to determine matters respecting her fertility and reproduction and to have an abortion on demand. This case legalized abortion.

    Roe, a Texas resident, sought to terminate her pregnancy by abortion, but a Texas statute prohibited abortions except to save the pregnant woman's life. The question before the Court was whether the Constitution embraces a woman's right to terminate her pregnancy by abortion.

    The Court decided that yes it does. It held that a woman's right to an abortion fell within the right to privacy. Privacy itself is not an express right enumerated in the US Constitution, but according to the Supreme Court in Griswold v. Connecticut (1965), many of the rights expressly granted and protected by the Bill of Rights are grounded or based in a fundamental right to privacy. Indeed, as Justice Brandeis wrote in the 1928 case Olmstead v. US: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect... They conferred against the government, the right to be let alone--the most comprehensive of rights and the right most valued by civilized men." In Griswold, a case asking whether a married couple has the right to use contraceptives, is the Court recognized that there are certain zones or "penumbras" of privacy" that the Constitution recognizes as underlying many of our fundamental rights and are therefore privacy itself is protected under the Constitution. [The right to privacy can be found in the "penumbras" and "emanations" of other constitutional protections. Griswold]

    In Roe, the Court held that a right to privacy under the Due Process clause of the Fourteenth Amendment extends to a woman's decision to have an abortion, but that right is not absolute. That right must be balanced against the state's legitimate interests for regulating abortions: (1) protecting prenatal life and (2) protecting the mother's health. According to the decision, the woman's right to control matters involving her fertility and reproduction are strongest in the early months of pregnancy and the state's interests become stronger as the pregnancy goes on. The judges therefore used a balancing test and came up with a trimester approach to determine which party's interests are most important at which time during the pregnancy. In the first trimester, the woman's rights trump. In the second trimester, the state's legitimate interests weigh strongly against the woman's right and in the third trimester, the state's interests outweigh the woman's right. If the woman can make a claim that the pregnancy poses a threat to her health, she essentially and for all intents and purposes can have an abortion at any point in the pregnancy.

   In Roe, the Court also held that the fetus has no right of its own to claim protection because it is not a "person" within the meaning of the 14th Amendment. ("All persons born or naturalized in the United States...").

    Therefore, the Court redefined "life" to mean only babies who have been born, children and adults.

    Justice White dissented and wrote: "I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court." [Roe v. Wade, 410 U.S. 179]. Justice William Rehnquist also dissented. He would later write: "The drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

    Our nation was founded on a belief in God. For about 300 years we respected that. All of a sudden, this bit of history has become an inconvenient truth. We believed what God told us.. that every human life is special and worthy of life and dignity.. from the unborn to the very old. We understood what the laws of science itself told us: that a fetus is indeed a living being. We don't take lives. And then the Roe decision came along.

    It should be noted that Justice Ruth Bader Ginsberg, in a 2009 interview by the NY Times, admitted that she was under the impression that the Roe v. Wade decision on abortion was predicated on the Supreme Court majority's desire to diminish "populations that we don't want to have too many of." In this shocking admission, we get a glimpse into the reality that is our Supreme Court. The Justices have "agendas."

    Everson v. Board of Education (1947)

    In Everson v. Board of Education, the Supreme Court declared that our nation, long-founded on Christian values for our government, for our laws, for our national character, and for notions of morality, would no longer tolerate religion in the school system.... the very place students were expected to learn about their nation's history and heritage.

    In 1947, a simple and straightforward case was brought in Ewing Township, NJ. In Ewing Township, just like most other townships in NJ, school districts were (and still are) funded by taxpayer dollars. Mr. Everson questioned whether school reimbursements could be used by parents to send their children to private religious schools. As a taxpayer of Ewing Township, he alleged that this practice violated the First Amendment and amounted to the township endorsing and supporting religion. The Supreme Court held that the reimbursements did not violate the Constitution, for parents had the "choice" and were not forced to send their children where they wanted. But the decision didn't end there.

    While the Justices were able to reach the ultimate decision about the reimbursements, they took the occasion to make a sharp statement on the interpretation of the First Amendment. Basically, the decision, written by Justice Hugo Black (a former ranking member of the KKK appointed to the Court by FDR) declared that the First Amendment required a sharp and clear separation between government (of which public education is a function) and religion. Black wrote that there must be a "Wall of Separation" between Church and State. Although it could be argued that Hugo Black lifted this phrase from the Klansman Creed which, after the KKK resurfaced again in the 1920's, demanded a "Wall of Separation between Church and State" in order to prevent the growing Catholic population from inserting their views in politics, Black managed to cite a letter written by Thomas Jefferson in 1801 to the Danbury Baptist Association which included that phrase.

    In that letter to the Danbury Baptists, who had written Jefferson because of religious persecution they were suffering, our distinguished third president sought to console them by assuring that the First Amendment would always prevent a formal establishment of one religion over another. Jefferson wrote: "Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church and State." It should be noted that in Supreme Court jurisprudence, a letter is not appropriate authority. It is not in the list of the types of appropriate authority on which to base a decision.

    And yet, Justice Black wrote in Everson: "In the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect 'a wall of separation between church and State'....... That wall must be kept high and impregnable. We could not approve the slightest breach." It can be easily argued that no metaphor in any American letter has had a more profound influence on law and on policy than this letter by Thomas Jefferson. It can be argued that the United States effectively became a secular society with the Everson decision and its subsequent related cases. Can we imagine what the self-proclaimed "Founder of Religious Freedom" would say if he knew that a phrase in a single letter effectively removed religion from public life, for it was always his opinion that "Free Exercise" was the more important of the clauses? His own conduct is a testament to his views. He used government funding to establish a church in the Congress building which he attended every Sunday but would not establish national days of fasting, observations, etc because that would amount to a government establishment of one particular religion.

    Nevertheless, Everson's strongly-worded opinion paved the way for a series of later Supreme Court decisions that, taken together, brought about profound changes in legislation, public education, and other policies involving matters of religion. Many believe the Everson case undertook a "new" interpretation of the First Amendment and such Chief Justices of the Supreme Court as William Rehnquist (1986-2005) and our current Chief Justice John Roberts (2005-) believe the decision was an exercise of judicial overreaching and should be overturned. This may actually indicate the new direction of the Supreme Court.

    In Engel v. Vitale (1962), the Supreme Court held that it is unconstitutional for teachers and other school officials to require an official school prayer in public schools, even if it is non-denominational.

    Flemming v. Nestor (1960)

    Probably every single worker in this country who has money mandatorily taken from their paychecks to be put into a special fund for Social Security benefits upon retirement would assume that those funds are property rights that have simply not 'matured,' in a sense. Most would feel a sense of a contractual or property right to those funds. They see the government as 'temporarily' holding the money for the individual's benefit. After all, they already are "forced" to pay federal and state income tax and they understand that those amounts rightfully then become the property of the federal government, under the 16th Amendment, the Social Security Act, and other laws. Social Security deductions are not property that rightfully belongs to the government. But anyone who believes this sound-proof logic would be wrong. In Flemming v. Nestor, the Supreme Court held that workers have no right to their Social Security deductions and no right to Social Security in general. The Court ignored 300 years of jurisprudence which focused on the three most dearly-held rights of man: Life, Liberty, and Property (see John Locke, Thomas Jefferson, and most of our Founding Fathers). The Supreme Court held that Social Security payments are not property rights and therefore if the government interferes with those payments, there is no 5th Amendment Due Process violation (taking of life, liberty, or property without 'due process of law'). The Court noted that to say that the Social Security system represents 'accrued property rights" would deprive it of the flexibility it needs to adjust to ever-changing conditions.
And this brings us up to our most current activist Supreme Court decision.... Brown v. Plata.

    Brown v. Plata (May 23, 2011)

    In Brown v. Plata, a highly controversial decision handed down by the US Supreme Court on May 23, the liberal members of the Court painted such a terrible picture of the California prison system as violating prisoner rights that it felt it necessary to authorize an extraordinary remedy calling for the release of 46,000 convicted criminals. It was a 5-4 decision that broke along ideological lines, with Justice Kennedy siding with the liberal members and tipping the decision in their favor. Justice Scalia called the order affirmed by the majority "perhaps the most radical injunction issued by a court in our nation's history." Justice Alito said "the majority is gambling with the safety of the people of California."

    Justices Antonin Scalia and Samuel A. Alito Jr. filed vigorous dissents, which will be the focus of this analysis. Justice Clarence Thomas joined in Scalia's dissent and Chief Justice John Roberts joined in on Alito's dissent.

    California's prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions were the subject of two federal class action suits. In the first class-action suit, Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to over-see remedial efforts reported 12 years later that the state of mental health care in California's prisons was deteriorating due to increased overcrowding. In the second class-action suit, Plata v. Brown, filed in 2001 on behalf of prisoners with serious medical conditions, the State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by over-crowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing over-crowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. [The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata district court judges and a third, a Ninth Circuit judge. After hearing testimony and making extensive findings of fact, this three-judge court ordered California to reduce its prison population to 137.5% of design capacity and to do so within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval. The state of California (Governor Brown) appealed the decision to the Supreme Court, arguing that the three-judge panel had no jurisdiction to rule on the issue and that it didn't give California a reasonable amount of time to comply with previous court orders directed at remedying the problem. The high Court affirmed the three-judge court's order. [Brown v. Plata, pg. 1].

    The Prison Litigation Reform Act (PLRA) states that prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs"; that such relief must be "narrowly drawn, and extend no further than necessary to correct the violation of the Federal right"; and that it must be "the least intrusive means necessary to correct the violation of the Federal right." 18 U. S. C. §3626(a)(1)(A). This standard is what stands at the heart of this decision.

    The plaintiffs alleged that "system-wide deficiencies in the provision of medical and mental health care, taken as a whole, subject sick and mentally ill prisoners in California to 'substantial risk of serious harm' and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society." As Scalia pointed out, current jurisprudence does not prescribe (or at least has not until today prescribed) rules for the "decent" running of schools, prisons, and other government institutions. It forbids "indecent" treatment of individuals--in the context of this case, the denial of medical care to those who need it.... That is, at least until this decision. [See Roper v. Simmons, 543 U. S. 551, 615-616 (2005)]. The plaintiffs did not claim, and it would absurd to suggest--that every single one of those prisoners has personally experienced "torture or a lingering death." [Ibid, pg. 19]

    Justice Anthony Kennedy sided with the liberal block and wrote the decision for the majority. In the decision written by Justice Kennedy (and joined by Ginsburg, Breyer, Sotomayor, and Kagan), the majority agreed with the lower court's description of the prison system as failing to deliver minimal care to prisoners with serious medical and mental health problems and producing "needless suffering and death." The majority held that the court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights and is authorized by the PLRA. The majority concluded that if a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. In addressing the public safety issue that would result by releasing prisoners/criminals, the majority agreed with the three-judge court which concluded that any negative impact on public safety would be "substantially offset, and perhaps entirely eliminated, by the public safety benefits of a reduction in overcrowding." [Ibid, pg. 45]. How this makes any possible sense, I'll never know. Justice Alito put the court's remedy of prisoner release into perspective: "The three-judge court ordered the premature release of approximately 46,000 criminals--the equivalent of three Army divisions." [Ibid, pg. 76]. And our Supreme Court upheld that remedy. Perhaps the criminals should be released into the neighborhoods of Ginsberg, Sotomayor, Kagan, and Kennedy and their families.

    Kennedy wrote: "The medical and mental health care provided by California's prison falls below the standard of decency," and "this extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding." [Ibid, pg. 54]. Justice Kennedy seemed to state that the reduction in population need not be achieved solely by releasing prisoners early. Among the other possibilities, he said, are new construction, out-of-state transfers and using county facilities. The ruling gives the state some flexibility when it comes to how it goes about reducing its prison population even suggesting that three judge panel that originally issued the order could extend a two-year compliance order if it felt the state was making progress in its efforts to reduce the inmate population to 137.5% of capacity. Yet, citing the lower-court decision, he wrote: "The common thread connecting the State's proposed remedial efforts is that they would require the State to expend large amounts of money. The Court cannot ignore the political and fiscal reality behind this case. California's Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall." [Ibid, pg. 38]. The majority opinion included photographs of inmates crowded into open gymnasium-style rooms to emphasize the status.