"Fine physical specimens"

Yesterday, the Supreme Court of the United States issued its decision upholding the lower court's order to reduce by 40,000 the population in California state prisons.  See Brown v. Plata, No. 09-1233.  There are 2 points I find worth making.

(1) This (another) 5-4 split is being defined by Justice Scalia's dissenting opinion as a fight about the scope of the power of the Judiciary.  Despite the explicitly-enabling statute, the Prison Litigation Reform Act of 1995 (PLRA), Justice Scalia reminds the Court of the lack of expertise that the Court has to fashion policy changes and, on the basis of that institutional lack of expertise, questions the Court's rationale for the order to reduce the prison population.

Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials.

True.  Structural injunctions of the type discussed in Brown v. Plata are to be avoided if possible.  However, this is hardly the first time that the judiciary got involved in structural reforms of "complex social institutions."  Of the categories Justice Scalia cites, one can easily think of specific examples.  For schools, Brown v. Board of Education II, along with a number of local consent decrees pursuant to the landmark cases, engaged in a structural reform of the magnitude over and beyond just the school setting.  It was about integrating segregated America, a highly ambitious project of Court-led structural reform.  For police departments, here locally, we have the example of the consent decree against the Los Angeles Police Department that is still in effect today.  I believe it reasonable to infer here that Justice Scalia disapproves of these "structural injunctions" as he refers to them.  I won't go into it too much here, but I am somewhat sympathetic to his position.  It's crazy to ask an inexperienced judge (or judges) to make complex policy decisions.  However, the reason that I ultimately disagree with him and find Plata, Brown v. Board of Education, and the consent decree against the LAPD all perfectly useful and integral part of our system of government, is that we have the Court get involved only when all else has failed.  The Court, to put it simply, is the only one that can check the executive and the legislative failure to govern.  When the majority fails to abide by the Constitution, then the Court's job is to protect the minority under the Constitution.  That is the role of the Court in our checks-and-balances system of representative democracy.  And that is the role of the Court that Justice Scalia feels uncomfortable filling.  I'm glad that the Court, despite his and other conservative justices' misgivings, stepped up.

(2) Maybe I shouldn't be by now, but I am somewhat surprised that Justice Scalia and Justice Alito appealed to the stereotype of "dangerous criminal" in making their arguments.  First, Justice Scalia writes, while describing who will be released under the Court's order:

Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

I have no doubt whatsoever that Justice Scalia, along with millions of others, sees no problem with this description of incarcerated people.  There is a strong sense of disrespect and disregard for the humanity of these individuals.  They are not even people.  They are "physical specimens," though "fine" ones at that.  Another key term here is that they are said to have "intimidating muscles."  Logically, there is no reason to include such a descriptor in this statement.  He could've simply said: Many will undoubtedly be healthy individuals with no medical or mental condition.  Nope.  Leave out any reference to "severe mental illness" when describing these "fine physical specimens" with "intimidating muscles."  But do mention the muscles that are intimidating...  to whom?  And why?  Because, rhetorically, this image of "fine physical specimens" with "intimidating muscles," coupled with "severe mental illness" of having an intractably criminal mind, screams "danger" to our primitive mind.  They will kill you, rape your wife, and eat your children--these fine physical specimens with intimidating muscles and severe mental illness.  They can, because they have the muscles.  They will, because they're crazy.  I won't go so far as to suggest that the image this description is intended to conjure up in the reader's mind is that of a black man.  I don't know Justice Scalia that well, and I won't make that accusation.  But I will say that, to Justice Scalia, these "fine physical specimens" do not belong to the same category of humanity as he does.

Justice Alito, likewise, takes a telling rhetorical twist, when he writes:

The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.

Perhaps it's his military background in the army--and I hope it is--that suggested to him this particular device of comparing "criminals" to soldiers.  Even so, the message is clear: the Court is making a grave mistake in letting loose upon the populace three (3) Army divisions of criminals.  They will kill, pillage, and burn innocent civilians.  Don't forget I told you so.  It's the image of a war--where people that are in prison or "should be" in prison take one side, and the government form the other--that I find troubling.  Obviously, we're nowhere near discussing any "rehabilitative" services, if we view "them" as, well," them" and not part of "us."  To Justice Alito, as with Justice Scalia, these Army divisions of "46,000 criminals" are foreign, not of us.

In sum, if I may, I'm going to simply say: Justices Scalia and Alito perfectly demonstrate the mindset that show why the other branches of our government, ruled as they are by the majority rule, cannot effectively (and constitutionally, in this case) address this problem of segregating, alienating, dehumanizing, and repressing the population most severely impacted by mass incarceration.  Fear of the Other will almost always triumph over common sense.  In the short run, at least.  And it's the job of the Court, whether the Justices like it or not, to keep this fear from ruining us all.