Indiana Law Review The Changing Supreme Court and Prisoners' Rights Christopher E. Smith' Introduction The final years of the Rehnquist Court era represented a period of extraordinary^ compositional stability^ on the U.S. Supreme Court as the same nine Justices^ served together for the period from 1994 to 2005. "^ Beginning in 2005, the Court's composition changed significantly over a relatively short period of time with the departures of Chief Justice William Rehnquist,^ Justice Sandra Day O'Connor,^ Justice David Souter/ and Justice John Paul Stevens^ and their * Professor of Criminal Justice, Michigan State University. A.B., 1980, Harvard University; M.Sc, 1981, University ofBristol (U.K.); J.D., 1984, University ofTennessee; Ph.D., 1988, University of Connecticut. 1 . See Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law 67 (2005) ("You have to go back to the years from 181 1 to 1823 to find a longer period with no changes in personnel on the [Supreme] Court (and then there were only seven justices anyway)."). 2. See, e.g. , JAN CRAWFORD Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court 5 (2007) ("The Court ... had functioned as a unit for more than a decade, unaltered since the seating of Justice Breyer in 1994 . . . ."). 3. The nine Justices were Chief Justice William Rehnquist, Justice John Paul Stevens, Justice Sandra Day O'Connor, Justice Antonin Scalia, Justice ^\nthony Kennedy, Justice David Souter, Justice Clarence Thomas, Justice Ruth Bader Ginsburg, and Justice Stephen Breyer. See Christopher E. Smith & Thomas R. Hensley, Decision-Making Trends ofthe Rehnquist Court Era: Civil Rights and Liberties Cases, 89 JUDICATURE 161, 165 (2005). 4. The period of stability lasted from the confirmation ofJustice Stephen Breyer to replace retiring Justice Harry Blackmun in 1994 until the next departure from the Court, that of Chief Justice William Rehnquist in 2005, who was replaced by Chief Justice John Roberts. See David Margolick, Scholarly Consensus Builder: Stephen Gerald Breyer, N.Y. TIMES, May 14, 1994, available at http://www.nytimes.eom/l 994/05/14/us/man-supreme-court-scholarly-consensus- builder-stephen-gerald-breyer.html; David E. Rosenbaum, An Advocatefor the Right, N.Y. Times, July 28, 2005, at A16. 5. Linda Greenhouse, Chief Justice Rehnquist Dies at 80, N.Y. Times, Sept. 4, 2005, flfvdng text. 150. See supra notes 1 37-40 and accompanying text. 151. Beard v. Banks, 548 U.S. 52 1 , 536 (2006) (Thomas, J., concurring). Justice Scaliajoined this opinion. 870 INDIANA LAW REVIEW [Vol. 44:853 Justice Scalia exerted significant influence over the definition and existence of prisoners' rights through two majority opinions in which he ingeniously exploited the malleability ofjudicial language in order to create new precedent that curtailed rights for prisoners. ^^^ Justice Scalia relied on Justice Thurgood Marshall's majority opinion creating a right of access to prison law libraries as an essential component of the right of access to the courts. ^^^ What Marshall had written as a step to create a necessary expansion of rights, Scalia subsequently used as if it was intended to define the limit of said right. ^^'^ In addition, Justice Scalia used the concept of standing to make it difficult for prisoners to establish that they need additional legal assistance in order to gain effective access to the courts. He had long advocated the use of standing requirements in order to limit the number of cases—and policy-related issues—^that could be placed in front of judges. ^^^ In this case, his use of the standing requirement created an impenetrable "catch-22" situation for many prisoners with low literacy levels, mental problems, or lack of facility with the English language: they need to go to court on their own, without additional assistance in order to prove that they are unable to go to court on their own, without additional assistance. ^^^ Obviously, if a prisoner could prove to a judge that he struggles with education, language, or IQ problems, he would simultaneously be proving that he could make use of the courts without the additional assistance that he was requesting. For those who truly needed extra assistance to gain access to the courts, it would be impossible for them to effectively present that need in court, and therefore, they would be effectively barred fi"om asserting their rights in the judicial process. ^^^ Any impediments to effectively preparing and presenting legal petitions will affect the protection of all rights for prisoners because judicial enforcement of any right depends on a prisoner's access to the courts. ^^^ Justice Scalia also altered the test used to examine whether conditions of confinement in prisons violate the Eighth Amendment prohibition on cruel and unusual punishments. In Wilson v. Setter, the Court considered an array ofclaims about food, ventilation, and other issues at an Ohio prison. *^^ In two prior cases about general living conditions, the Supreme Court had made objective assessments concerning whether crowded cells, minimal food, and exposure to communicable diseases violated the Eighth Amendment. ^^^ The Justices 152. See Christopher E. Smith, The Malleability of Constitutional Doctrine and Its Ironic Impact on Prisoners ' Rights, 1 1 B.U. PUB. iNT. L.J. 73, 84-91 (2001). Those two opinions were Lewis V. Casey, 518 U.S. 343 (1996), and Wilson v. Seiter, 501 U.S. 294 (1991). 153. Bounds v. Smith, 430 U.S. 817, 828 (1977). 154. Smith, supra note 152, at 90. 155. Id 156. See id. 157. See id. at 91. 158. Id 159. Wilson v. Seiter, 501 U.S. 294, 296 (1991). 160. In the prior cases, Rhodes v. Chapman, 452 U.S. 337 (1981), and Hutto v. Finney, 437 U.S. 678 (1978), the Justices looked at the actual conditions to make an objective assessment of 2011] THE CHANGING SUPREME COURT 87 1 examined whether the conditions imposed the "unnecessary and wanton infliction of pain," were "grossly disproportionate to the severity of the crime,"'^' or "transgress[ed] today's 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency. '"'^^ In Wilson, Justice Scalia avoided discussing these precedents on prison conditions and instead treated as controlling precedent two cases that were about very specific Eighth Amendment issues—medical care'^^ and the use of force,^^"^ neither of which were the focus of the claims in Wilson. He selectively chose to use these other precedents in order to announce a new rule requiring a subjective evaluation of prison conditions. '^^ Justice Scalia's opinion required prisoners to prove "deliberate indifference" on the part of corrections officials in order to show that prison conditions violated the Eighth Amendment. ^^^ In a concurring opinion. Justice Byron White noted that Scalia's approach would permit prison officials to preside over inhumane living conditions as long as the prison officials claimed that they cared about the conditions but were unable to improve the situation due to a lack of funding from the state legislature. ^^^ As Justice Stevens had complained years earlier, when the "deliberate indifference" test was first applied in a prison medical care case, "whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it."^^^ Notwithstanding the criticisms of the four Justices who declined "cruel and unusual punishments" instead ofrelying on a subjective evaluation ofthe motives ofthe corrections officials in order to determine Eighth Amendment violations. See Rhodes, 452 U.S. at 346-47 ('" [J]udgment[s] should be informed by objective factors to the maximum possible extent. ' ... In Estelle v. Gamble ... we held that the denial of medical care is cruel and unusual because, in the worst case, it can result in physical torture, and, even in less serious cases, it can result in pain without any penological purpose. ... In Hutto v. Finney ... the conditions ofconfinement in two Arkansas prisons constituted cruel and unusual punishment because they resulted in unquestioned and serious deprivations of basic human needs. Conditions other than those in Gamble and Hutto, alone or in combination, may deprive inmates ofthe minimal civilized measure oflife's necessities." (internal citations omitted)); Hutto, 437 U.S. at 687 ("The [district] court took note of the inmates' diet, the continued overcrowding, the rampant violence, the vandalized cells, and the 'lack of professionalism and good judgment on the part ofmaximum security personnel.' . . . The length of time each inmate spent in isolation was simply one consideration among many. We find no error in the court's conclusion that, taken as a whole, conditions in the isolation cells continued to violate the prohibition against cruel and unusual punishment." (internal citation omitted)). 161. Rhodes, 452 U.S. at 345-347 (citation omitted). 162. Hutto, 437 U.S. at 685 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). 163. ^-^/e/Ze, 429 U.S. at 98. 164. Whitley V. Albers, 475 U.S. 312 (1986). 165. Smith, supra note 152, at 84-85. 166. Wilson v. Seiter, 501 U.S. 294, 302-04 (1991). 167. Id. at 31 1 (White, J., concurring). 168. Estelle, 429 U.S. at 1 16-17 (Stevens, J., dissenting). 872 INDIANA LAW REVIEW [Vol. 44:853 to join Scalia's Wilson opinion, the precedent has made it significantly more difficult for prisoners to prove that prison conditions violate the Eighth Amendment. '^^ Overall, Justice Scalia's originalist orientation leads him to take a restrictive view of the existence of prisoners' rights. Moreover, his skillful and effective manipulation of precedent has assertively imposed impediments to the effectuation of the right of access to the courts for many prisoners and made it much more difficult for prisoners to prove that substandard prison conditions violate the Eighth Amendment. 3. Anthony Kennedy.—Justice Anthony Kennedy, an appointee of President Ronald Reagan, generally supports corrections officials in prisoners' rights cases presented to the Supreme Court. '^^ He is well-known for playing a key role in determining case outcomes when the Court is deeply divided. ^^' He parted company with the Court's conservatives to provide pivotal votes for hberal majorities to preserve a right ofchoice for abortion, ^^^ prevent the criminalization ofgay and lesbian adults' private, non-commercial sexual conduct,^^^ and prohibit the death penalty for mentally retarded^^'^ and juvenile murderers,'^^ as well as for sex offenders who victimize children. ^^^ Unlike Justices Scalia and Thomas, Kennedy is not an originalist; thus, as indicated by his decisions concerning capital punishment, ^^^ he applies the flexible Trop v. Dulles standard for determining Eighth Amendment violations. '^^ With respect to prisoners' rights generally, however. Justice Kennedy tends to provide a dependable vote in support of corrections' officials policies and practices. Justice Kennedy has not been assertive in presenting concurring and dissenting opinions in prisoners' rights cases. He has written several majority 169. Smith, supra note 152, at 87. 1 70. See supra Table 1 . 171 . Charles Lane, Kennedy Reigns Supreme on Court, WASH. POST, July 2, 2006, at A6. 172. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). 173. Lawrence v. Texas, 539 U.S. 558 (2003). 174. Atkins v. Virginia, 536 U.S. 304 (2002). 175. Roper v. Simmons, 543 U.S. 551 (2005). 176. Kennedy v. Louisiana, 554 U.S. 407 (2008). 177. For example, in Roper, Justice Kennedy wrote: The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the propriety and affirmed the necessity ofreferring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. i?o/?er, 543 U.S. at 560-61 (quoting Trop V. Dulles, 356U.S. 86, 100-01 (1958)(plurality opinion)). 178. Trop, 356 U.S. at 100-01 ("[T]he words ofthe Amendment are not precise, and . . . their scope is not static. The Amendment must draw its meaning from the evolving standards ofdecency that mark the progress of a maturing society." (internal citation omitted)). 2011] THE CHANGING SUPREME COURT 873 opinions that reject rights claims by convicted offenders. In McKune v. Lile, for example, over the objections of four dissenters, Kennedy wrote the plurality opinion and announced the judgment ofthe Court rejecting a prisoner's assertion of a Fifth Amendment self-incrimination violation. ^^^ At issue in McKune was an institutional treatment program for sex offenders that required an offender to reveal all acts he had ever committed, leaving open the possibility that he could be prosecuted for any admissions. '^^ If the offender refused to participate in the treatment program, he faced transfer to a higher-security institution with fewer privileges and more difficult and dangerous living conditions.'^' In Washington V. Harper, over the objections of three dissenters. Justice Kennedy wrote the majority opinion permitting state officials to forcibly medicate a mentally ill prisoner. '^^ In Wilkinson v. Austin, Justice Kennedy spoke for a unanimous Court in rejecting a claim that Ohio prisoners had received inadequate procedural protections before being classified for assignment to a supermax prison. '^^ Overall, Justice Kennedy is inclined to support corrections officials' policies and procedures over claimed rights violations that are asserted by prisoners. 4. Stephen Breyer.—Justice Breyer was appointed to the Supreme Court by Democratic President Bill Clinton in 1994,'^'' and he has been characterized as the Court's "liberal pragmatist."'^^ As indicated by his divided record in voting on prisoners' rights cases, '^^ he is willing to support claims by prisoners for some issues, but he also joins the conservatives on the Court in supporting corrections officials quite regularly. Justice Breyer has written relatively few opinions in prisoners' rights cases. In Sandin v. Conner, ^^^ he wrote a dissenting opinion that objected to the majority's narrow view of the liberty interests at stake when a prisoner was transferred to administrative segregation as punishment for violating institutional rules. '^^ Justice Breyer wrote the majority opinion in Richardson v. McKnight, holding that corrections officials at private prisons may not benefit from qualified immunity when they are defendants in prisoners' civil rights lawsuits. '^^ He also wrote a dissenting opinion, joined by Justice Stevens, arguing for greater flexibility for judges to issue orders under his interpretation of the Prison Litigation Reform Act.'^^ Overall, Justice Breyer is not an 179. McKune v. Lile, 536 U.S. 24, 48 (2002) (plurality opinion). 180. Mat 30. 181. Id at 30-31. 182. Washington v. Harper, 494 U.S. 210, 236 (1990). 183. Wilkinson v. Austin, 545 U.S. 209, 229-30 (2005). 1 84. Christopher E. Smith et al., The First-Term Performance ofJustice Stephen Breyer, 79 Judicature 74, 74 (1995). 185. Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America 206 (2007). 1 86. See supra Table 1 . 187. 515 U.S. 472(1995). 188. Id. at 491-505 (Breyer, J., dissenting). 189. Richardson v. McKnight, 521 U.S. 399, 41 1 (1997). 190. Miller v. French, 530 U.S. 327, 353-62 (2000) (Breyer, J., dissenting) (discussing the 874 INDIANA LAW REVIEW [Vol. 44:853 outspoken defender of broad rights for prisoners. 5. Ruth Bader Ginsburg,—Much Uke Justice Breyer, Justice Ginsburg votes to endorse prisoners' claims for some issues, but she also votes regularly to support corrections officials' actions. '^^ She has written very few opinions in prisoners' rights cases. In a rare prisoners' rights opinion by Justice Ginsburg in Edwards v. Balisok,^^^ her concurrence took a broader view than that of Justice Scalia's majority opinion about the nature of colorable claims when prisoners challenge disciplinary procedures. ^^^ In another of her opinions, a dissent joined by Justice Stevens in Sandin v. Connor, Justice Ginsburg used broad language about the liberty interests retained by prisoners. This opinion may indicate that she could respond forcefully if a new majority on the Roberts Court seeks to issue new decisions diminishing prisoners' procedural rights. In this case concerning the right to due process for a prisoner sent to disciplinary segregation, Ginsburg wrote: I see the Due Process Clause itself, not Hawaii's prison code, as the wellspring of the protection due . . . [the plaintiff]. Deriving protected liberty interests from mandatory language in local prison codes would make of the fundamental right something more in certain States, something less in others. Liberty that may vary from Ossining, New York, to San Quentin, California, does not resemble the "Liberty" enshrined among "unalienable Rights" with which all persons are "endowed by their Creator. ..." Deriving the prisoner's due process right from the code for his prison, moreover, yields this practical anomaly: a State that scarcely attempts to control the behavior of its prison guards may, for that very laxity, escape constitutional accountability; a State that tightly cabins the discretion of its prison workers may, for that attentiveness, become vulnerable to constitutional claims. An incentive for ruleless prison management disserves the State's penological goals and jeopardizes the welfare of prisoners. To fit the liberty recognized in our fundamental instrument of government, the process due by reason of the Constitution similarly should not depend on the particularities of the local prison's code. Rather, the basic, universal requirements are notice of the acts of misconduct prison officials say the inmate committed, and an opportunity to respond to the charges before a trustworthy decisionmaker. ^^"^ The viewpoint expressed by Justice Ginsburg in this opinion echoes Justice Stevens's broad support for prisoners' rights, at least with respect to due process Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 1 10 Stat. 1321-66 (1996)). 191. See supra Table 1 . 192. 520 U.S. 641 (1997). 193. Id. at 649-50 (Ginsburg, J., concurring). 194. Sandin v. Conner, 515 U.S. 472, 489-90 (1995) (Ginsburg, J., dissenting) (internal citations omitted). 20 1 1 ] THE CHANGING SUPREME COURT 875 issues. C Summary Assessment ofJustices at Point of Transition to a New Era As indicated by the foregoing discussion, the Supreme Court has lost its most ardent and outspoken advocate for prisoners' rights: Justice Stevens, as well as the Justice who, after Stevens, was most likely to vote in support of prisoners' claims (Justice Souter). Their retirements raise questions about whether their replacements will be as supportive of prisoners' rights and whether any Justice will assume Justice Stevens's role of consistently articulating arguments for the importance of prisoners' rights. For the latter role, it is possible that remaining Justices Ginsburg and Breyer will be more proactive in choosing to write concurring and dissenting opinions that defend prisoners' rights. However, their voting records in prisoners' rights cases ^^^ and infrequent opinions in such cases provide little evidence that Rehnquist Court holdovers will fill the advocacy role previously performed by Justice Stevens. The two conservative retirees. ChiefJustice Rehnquist and Justice O'Connor, both acknowledged the existence of prisoners' rights. Rehnquist was seldom supportive of recognizing more than limited rights, while O'Connor was instrumental in developing the key test for determining whether specific rights claims would prevail over corrections officials' implemented policies and practices. Although they were not defenders of prisoners' rights in their votes and opinions, they were more supportive of prisoners' rights than the conservative Justices who remain on the Court. Justice Kennedy has been much like Rehnquist and O'Connor in voting to support corrections officials' practices, ^^^ and like Rehnquist and O'Connor, Kennedy has not written opinions advocating wholesale changes in prisoners' right precedents. By contrast, Justices Thomas and Scalia are quite explicit about their desire to overturn precedents and thereby drastically constrict, if not eliminate, most constitutional protections for prisoners. Thus, the key question for the transition into the Roberts Court era is whether Thomas and Scalia will gather sufficient support from Kennedy and the newcomers in order to create significant changes in the law of prisoners' rights. II. The Roberts Court The Roberts Court era officially began after the death of Chief Justice Rehnquist in 2005 led to the appointment and confirmation of Chief Justice John Roberts. '^^ The new Supreme Court did not present significant possibilities for differentiating itself from the Rehnquist Court, however, until the departure of a critical mass of Justices created the possibility that the high court could decide cases in a distinctively different way with new combinations of Justices determining case outcomes and precedential reasoning. The retirement ofJustice 195. See supra Table 1 . 196. See id. 197. See Stolberg & Bumiller, supra note 9. 876 INDIANA LAW REVIEW [Vol. 44:853 Stevens in 2010 meant that there were a total of four new Justices added to the Court since 2005. As a result, genuine possibilities for new directions existed, especially as the newest Justices were not merely carbon-copy replacements of the departed Justices. A. The New Justices 1. John G. Roberts.—ChiefJustice John Roberts came to the Supreme Court with prior experience as both a Deputy Solicitor General who presented cases to the Court and as a federal appellate judge. ^^^ In the Solicitor General's office, he actually had the experience of appearing before the Supreme Court in 1991 to argue in favor of the prisoner's claim^^^ in Hudson v. McMillian, an Eighth Amendment case concerning an assault committed upon a handcuffed prisoner by corrections officers.^^^ He returned in 1993 to argue against the prisoner's claim^^^ in Helling v. McKinney?^^ The case concerned whether a prisoner housed with a chain-smoking cellmate could pursue an Eighth Amendment claim based on potential future harms to his health.^^^ One cannot infer from these advocacy experiences any specific conclusions about Chief Justice Roberts's viewpoints about prisoners' rights. He may have had a role in determining the U.S. government's position in each case, but he did not have the ultimate authority over the argument to be presented; that authority rested with higher officials in the Solicitor General's office and the Department of Justice. These experiences do indicate, however, that Roberts had knowledge about Eighth Amendment issues in prisons prior to becoming a judge. Although "Chief Justice Roberts is not wedded to a single judicial methodology like the originalism and textualism that are the touchstones for Justices Scalia and Thomas,"^^"* his voting record in criminal justice cases is consistently conservative.^°^ Overall, Jeffrey Toobin concluded that "Roberts's 198. Todd S. Purdum et al., Court Nominee 's Life Is Rooted in Faith and Respectfor Law, N.Y. Times, July 2 1 , 2005, available at http://www.nytimes.eom/2005/07/2 1 /politics/2 1 nominee, html. 199. Hudson v. McMillian, 503 U.S. 1, 3 (1992); see also Hudson v. McMillian; U.S. Supreme Court Case Summary and Oral Argument, Oyez PROJECT, http://www.oyez. org/cases/1990-1999/1991/1991_90_6531 (last visited May 29, 2011). 200. //wJ5o«, 503 U.S. at 4. 20 1 . See Helling v. McKinney; U.S. Supreme Court Case Summary & Oral Argument, Oyez Project, http://www.oyez.org/cases/1990-1999/1992/1992_91_1958 (last visited May 29, 2011). 202. 509 U.S. 25(1993). 203. Mat 27-28. 204. Adam Liptak, The Roberts Court Comes ofAge, N.Y. TIMES, June 29, 2010, at Al, available at http://www.nytimes.com/2010/06/30/us/30scotus.html. 205. Madhavi M. McCall et al., CriminalJustice and the U.S. Supreme Court's 2008-2009 Term, 29 MiSS C. L. Rev. 1 , 7 tbl.4 (2010); Michael A. McCall et al., CriminalJustice and the U.S. Supreme Court's 2007-2008 Term, 36 S.U. L. REV. 33, 42 tbl.3 (2008); Michael A. McCall et al, Criminal Justice and the 2006-2007 United States Supreme Court Term, 76 UMKC L. Rev. 993, :0 1 1 ] THE CHANGING SUPREME COURT 877 record is not that of a humble moderate but, rather, that of a doctrinaire conservative."^^^ With respect to the Eighth Amendment, Roberts did differentiate himself from the Court's other conservatives—Justices Scalia, Thomas, and Alito—^by concluding that a sentence of life without possibility of parole for a juvenile who commits a non-homicide offense can, in some cases, violate the Eighth Amendment prohibition on cruel and unusual punishment.^^^ It is not yet known how his views about the Eighth Amendment might apply to prisoners' rights cases because he has consistently voted to uphold the prerogatives of "the executive branch over the legislature. "^^^ Therefore, it is natural to wonder whether he will be less protective ofthe Eighth Amendment in the executive-branch domain of prison administration. The primary difference between Chief Justice Roberts and his predecessor, Chief Justice Rehnquist, may involve the perception of many commentators that Roberts is intent on leading the Court aggressively toward reshaping the law in a conservative manner on many issues.^^^ As noted by one commentator, Indeed, the [C]ourt appears poised to move to the right .... Chief Justice Roberts has certainly been planting the seeds .... If his reasoning takes root in future cases, the law will move in a conservative direction on questions as varied as what kinds of evidence may be used against criminal defendants and the role the government may play in combating race discrimination.^^^ In his role as Chief Justice, Rehnquist took a stand against the elimination of Miranda rights as a matter of preserving established precedent rather than following his judicial philosophy.^^ ' By contrast, observers have noted Roberts's (as well as other conservative Justices') support for overruling precedents concerning a variety of issues.^^^ Indeed, U.S. Senator Sheldon Whitehouse (D- 998 tbl.3 (2008) [hereinafter McCall et al, 2006-2007 United States Supreme Court Term]. 206. Jeffrey Toobin, No More Mr. Nice Guy, NEW YORKER, May 25, 2009, at 42, available a^ http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin. 207. Graham v. Florida, 130 S. Ct. 201 1, 2036 (2010) (Roberts., C.J., concurring). 208. Toobin, supra note 206, at 42. 209. See, e.g., Adam Cohen, Last Term 's Winner at the Supreme Court: Judicial Activism, N.Y. Times, July 9, 2007, ava/7aZ)/e«^ http://www.nytimes.com/2007/07/09/opinion/09mon4.html; Simon Lazarus, The Most Activist Court, Am. PROSPECT, June 29, 2007, available at www.prospect.org/cs/articles?article=the_most_activist_court. 2 1 0. Adam Liptak, Roberts Court Shifts Right, TippedbyKennedy, N.Y. TIMES, June 30, 2009, at Al, available at http://www.nytimes.com/2009/07/01/us/01scotus,html. 211. See Dickerson v. United States, 530 U.S. 428, 443 (2000) ("Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles ofstare decisis weigh heavily against overruling it now."). 212. See, e.g., E.J. Dionne, Alito Draws Spotlight on Activist Court, COLUMBUS DISPATCH, Feb. 3, 2010, available at http://www.dispatch.com/live/content/editorials/stories/2010/02/03/ dion02.ART_ART_02-03-10_Al l_EQGFUJO.html?sid=101 ("[A] truth that many have tried to ignore: The Supreme Court is now dominated by a highly politicized conservative majority intent 878 INDIANA LAW REVIEW [Vol. 44:853 R.I.) harshly criticized ChiefJustice Roberts for his lack ofrespect for precedent: Finally, Roberts announced in his concurring opinion in Citizens United [v. Federal Election Commission^^^] a theory that, if a precedent is "hotly contested," it has lesser precedential value and can be replaced. This doctrine would allow a determined group of judicial sappers to selectively undermine and then topple ramparts ofprecedent with which they disagreed—simply on the basis of their willingness persistently to "hotly contest" those precedents they dislike.^^"^ In light of the persistent efforts of Justices Thomas and Scalia to "hotly contest" prisoners' rights precedents^ ^^ as well as their explicit desire to reverse the Supreme Court's rights-defining decisions,^^^ Roberts's presence on the Court may help form a critical mass of Justices who are eager to diminish the limited rights possessed by prisoners. 2. Samuel Alito.—Justice Samuel Alito, who was confirmed in 2006 after on working its will, even if that means ignoring precedents and the wishes ofthe elected branches ofgovernment On the contrary, I salute . . . [Justice Alito] because his candid response brought home to the country how high the stakes are in the battle over the conservative activism of Chief Justice John Roberts' [CJourt."); Toobin, supra note 206 ("[T]he last day ofRoberts's second full term as ChiefJustice ... the Justices overturned a ninety-six-year-old precedent in antitrust law and thus made it harder to prove collusion by corporations. Also that year they upheld the Partial Birth Abortion Ban Act, in Kennedy's opinion, even though the Court had rejected a nearly identical law just seven years earlier. ... In all these cases, Roberts and Alito joined with Scalia, Clarence Thomas, and Kennedy to make the majority. On this final day, Breyer offered an unusually public rebuke to his new colleagues. 'It is not often in the law that so few have so quickly changed so much,' Breyer said."). 213. Citizens United v. Fed. Election Comm'n, 130 S. Ct. 876 (2010). Citizens United is a controversial decision in which a narrow majority on the Court shifted from existing law in order to endorse free speech rights for corporations that prevent the government from limiting corporate spending in election campaigns. 214. Sheldon Whitehouse, Judicial Activism, Nat'L L.J., Nov. 1, 2010, available at http://www.law.eom/j sp/nlj/PubArticleNLJ.jsp?id= 1 202474 1 4840 1 &slretum= 1 &hbxlogin= 1 . 215. See, e.g.. Beard v. Banks, 548 U.S. 521, 536 (2006) (Thomas, J., concurring); Overton V. Bazzetta, 539 U.S. 126, 140-42 (2003) (Thomas, J., concurring); Lewis v. Casey, 518 U.S. 343, 381-82 (1996) (Thomas, J., concurring); Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting); Hudson v. McMillian, 503 U.S. 1, 18-21 (1992) (Thomas, J., dissenting); Wilson v. Seiter, 501 U.S. 294(1991); Smith &BAUGH,5wpra note 125, at 91-98; Smith, 5w/7ra note 152, at 84-91 ; see also supra text accompanying notes 127-69; see generally BISKUPIC, supra note 146. 216. See, e.g.. Helling, 509 U.S. at 42 (Thomas, J., dissenting) ("The text and history of the Eighth Amendment, together with prQ-Estelle precedent [which established a limited right to medical care for prisoners], raise substantial doubts in my mind that the Eighth Amendment proscribes a prison deprivation that is not inflicted as part ofa sentence. And Estelle itselfhas not dispelled these doubts. Were the issue squarely presented, therefore, I might vote to overrule Estelle.-") 2011] THE CHANGING SUPREME COURT 879 appointment by President George W. Bush,^*^ is significantly more conservative than his predecessor, Justice Sandra Day O'Connor.^'^ Justice Alito's voting record shows him to support the claims of individuals in criminal justice cases less frequently than O'Connor did.^'^ Like Justices Thomas and Scalia, Alito is an originalist.^^^ As demonstrated by the originalist opinions of Thomas, the application of this originalism leads to the rejection of judicial recognition of constitutional rights for prisoners.^^' Moreover, during his confirmation hearings, Justice Alito was less committed to the preservation of precedent than Chief Justice Roberts had been at his confirmation hearings a few months earlier. ^^^ Indeed, Justice Alito has demonstrated his desire to overturn rights-protecting precedents in criminal justice through the extraordinary action of suggesting during the middle of an oral argument that the Court shift its focus from the narrow issues briefed and argued by the parties and instead consider a wholesale reversal of right-to-counsel precedent.^^^ Thus, Justice Alito appears to be a prime candidate to join Justices Thomas and Scalia, and possibly Chief Justice Roberts, in an attempt to curtail prisoners' rights. 3. Soma Sotomayor.—As the appointee of a liberal Democratic President, Justice Sonia Sotomayor was expected to be generally supportive of constitutional rights claims, much like her predecessor, Justice Souter.^^"^ However, her prior experience as a prosecutor made some observers wonder whether she might be more conservative in criminal justice-related cases.^^^ 217. Kirkpatrick, supra note 1 0. 218. See, e.g., Simon Lazarus, More Polarizing Than Rehnquist, Am. PROSPECT, May 14, 2007, available at http://prospect.org/cs/articles?article=more_polarizing_than_rehnquist ("[T]he consistently right-leaning Alito has replaced the pragmatic centrist Sandra Day O'Connor . . . ."). 219. For example, near the end of her career, Justice O'Connor supported claims by individuals in over 30% ofthe Court's non-unanimous criminal justice decisions during the 2003- 04 term. Smith et al., supra note 22, at 1 33 tbl.4. By contrast. Justice Alito supported individuals' claims in only 6% of the Court's criminal justice cases during his first full term on the Court. McCall et al., 2006-2007 United States Supreme Court Term, supra note 205, at 998 tbl.4. 220. See Steven G. Calabresi, Introduction, in Originalism: A Quarter-Century of Debate 1, 6 (Steven G. Calabresi ed., 2007) ("Justice Alito . . . seems to be a firm originalist."). 22 1 . See cases cited supra note 215; see also Smith&Baugh, supra note 1 25 , at 9 1 -98 ; supra text accompanying notes 127-40. 222. See Jeffrey Rosen, Alito vs. Roberts, Wordby Word, N.Y. TIMES, Jan. 15, 2006, available ar http://www.nytimes.com/2006/01/15/weekinreview/15rosen.ready.html. 223. MaiciaCoylQ, As Nominee Is Announced, High CourtIssues Police Interrogation Ruling, Two Others, Nat'l L.J., May 27, 2009, available at http://www.lawjobs.com/newsandviews/ LawArticle.jsp?id=1202430979440&rss=careercenter&s/retum=l&hbxlogin=l. 224. Greg Stohr, Sotomayor 's Record Suggests Similarities with Souter, BLOOMBERG NEWS Serv., May 27, 2009, ava/7<36/e<3/http://www.bloomberg.com/apps/news?pid=newsarchive&sid= az 1 wvdAlNThs&refer=home. 225. See James Oliphant, Sotomayor Is Remembered as a Zealous Prosecutor, L.A. TIMES, June 9, 2009, available at http://www.latimes.com/news/nationworld/nation/la-na-sotomayor- prosecutor9-2009jun09,0,7206855.story ("Her experience as an assistant district attorney in New 880 INDIANA LAW REVIEW [Vol. 44:853 In her second term on the Court, Justice Sotomayor provided a clue that she may emerge as the Court's new outspoken leader who will defend prisoners' rights. In Pitre v. Cain,^^^ she wrote a dissent from the Court's denial ofcertiorari in a case concerning a Louisiana prisoner who was allegedly punished because he stopped taking his AIDS medication as a protest against an impending transfer.^^^ As described in Sotomayor' s dissent: He alleges that respondents at the facility punished him for . . . [his refusal to take the medication] by subjecting him to hard labor in 100- degree heat. According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious to rush him to an emergency room.^^^ The lower courts concluded that his allegations were insufficient to state a plausible Eighth Amendment violation, and his case was dismissed.^^^ Justice Sotomayor, alone among all of the Supreme Court Justices, argued that [e]ven assuming respondents had a legitimate penological interest that outweighed a right to reftase HIV medication, that interest would not permit respondents to punish Pitre, or to attempt to coerce him to take medication, by subjecting him to hard labor that they knew posed "a substantial risk of serious harm."^^^ She further argued that "Pitre' s allegations, if true, describe 'punitive treatment [that] amounts to gratuitous infliction of 'wanton and unnecessary' pain that our precedent clearly prohibits.' ... I cannot comprehend how a court could deem such allegations ' frivolous. "'^^* Her tone and assertiveness in this dissent from denial of certiorari are reminiscent of the prisoners' rights opinions of Justice Stevens,^^^ so perhaps Justice Sotomayor will assume his previous role as the Court's prisoners' rights advocate. 4. Elena Kagan.—In contrast to Sotomayor, the other Democratic appointee. Justice Elena Kagan,^^^ the actual replacement for Justice Stevens in 2010, is so new to the Court that it is impossible to assess how she will decide prisoners' rights cases. Her prior professional experience as a law school dean and Solicitor General ofthe United States^^"^ did not require expertise on prisoners' rights cases. York made her something ofa law-and-orderjudge, experts say, especially when it came to police searches and the use of evidence."). 226. 131 S.Ct. 8(2010). 227. /J. at 8-10. 228. Id. at 8. 229. Id. 230. Id. at 9 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 231. Id at 10 (quoting Hope v. Pelzer, 536 U.S. 730, 738 (2002)). 232. See Smith, supra note 26, at 733-36. 233. Baker, 5w/7ranote 12. 234. Id 2011] THE CHANGING SUPREME COURT 881 But her earlier experience as a law clerk for the liberal Supreme Court Justice Thurgood Marshall made her familiar with petitions filed by convicted offenders. B. Prisoners ' Rights Cases in the Roberts Court Era There are, as yet, very few prisoners' rights cases decided by the Roberts Court from which to draw conclusions about the decisionmaking orientations of the replacements for the departed Rehnquist Court Justices. One case involving substantive prisoners' rights was Beard v. Banks,^^^ which concerned "whether a Pennsylvania prison policy that 'denies newspapers, magazines, and photographs' to a group of specially dangerous and recalcitrant inmates [whose bad behavior led them to be placed in the long-term segregation unit] ' violate[d] the First Amendment. '"^^^ Corrections officials claimed that this rule was necessary for security reasons and to create incentive rewards for improved behavior.^^^ Over the dissenting opinions of Justices Stevens and Ginsburg, Chief Justice Roberts joined Justices Kennedy and Souter in endorsing the plurality opinion of Justice Breyer that applied the deferential four-part reasonableness test^^^ from Turner v. SafleyP'^ They concluded that the regulation denying access to materials was permissible despite the fact that the practice violated one prong of the Turner test by providing no alternative means to exercise the relevant First Amendment right.^"^^ This was arguably an especially deferential application of an already-deferential test for violations of prisoners' rights. Yet by joining the Breyer plurality opinion. Chief Justice Roberts distinguished himself from fellow conservatives Justices Thomas and Scalia, whose views were expressed in a concurring opinion by Justice Thomas.^'*^ Thus, the newcomer did not endorse the more restrictive and distinctive viewpoint, first articulated by Thomas in Overton v. Bazzetta^^^ that states define the rights for their own prisoners through their laws, regulations, and policies: "Because the Constitution contains no such definition, ' [s]tates are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivations — provided only that those deprivations are consistent with the 235. 548 U.S. 521 (2006). 236. Id. at 524-25 (citation omitted). 237. Mat 531. 238. See SMITH, supra note 60, at 88 ("This kind of test is often referred to as a rational basis test (or the reasonableness test) in constitutional law."). 239. 482U.S. 78, 89-91 (1987). 240. See Beard, 548 U.S. at 532 ("But these circumstances simply limit, they do not eliminate, the fact that there is no alternative. The absence of any alternative thus provides 'some evidence that the regulations [a]re unreasonable,' but is not 'conclusive' of the reasonableness of the [p]olicy." (citation omitted)). 241. See id. at 536 (Thomas, J., concurring). 242. 539 U.S. 126, 138-42 (2003) (Thomas, J., concurring). 882 INDIANA LAW REVIEW [Vol. 44:853 Eighth Amendment '"'^"^^ This case was decided during Chief Justice Roberts's first term on the Supreme Court, so it remains to be seen whether his views on the appHcation of the Turner test are ahgned with those of Justice Breyer or move closer toward the even more restrictive perspectives of Justices Thomas and Scalia. Justice Alito did not participate in Beard v. Banks because he had previously decided the case as a judge on the U.S. Court ofAppeals for the Third Circuit.^"^ As a member of a three-judge panel on the intermediate appellate court, Alito dissented against the majority's decision that found in favor of the prisoners.^"^^ In his dissenting opinion, Alito applied the Turner test in a deferential fashion similar to that ultimately applied in Justice Breyer' s plurality opinion.^"^^ Although it is clear which outcome Justice Alito would have supported on the Supreme Court, it is unknown whether Alito was inclined to join his fellow originalists, Thomas and Scalia, and support their more restrictive view of prisoners' rights. As a judge on the court of appeals, he was likely to feel obligated to follow the Supreme Court's precedents by using the Turner test rather than utilizing Justice Thomas's distinctive analytical approach, even ifthat approach more accurately reflected Justice Alito 's own perspective on constitutional interpretation. Procedural matters were at the heart of the other cases that have divided the Roberts Court Justices^"^^ and may shed light on the Justices' orientation toward prisoners' claims. In Bowles v. Russell^"^^ a prisoner relied on a district court's order which gave him seventeen days to file his appeal from a denial of habeas corpus relief ^"^^ However, the relevant statute actually only provided a fourteen- day period in which to file such appeals.^^^ Justice Thomas wrote the opinion for a conservative majority, also consisting of Chief Justice Roberts and Justices Scalia, Kennedy, and Alito, that declared the fourteen-day deadline to be a strict jurisdictional rule imposed by the statute.^^' In dissent. Justice Souter, on behalf of Justices Stevens, Ginsburg, and Breyer, used uncharacteristically strong language to object to the unfairness of the majority's strict rule: The [djistrict [c]ourt told petitioner Keith Bowles that his notice of appeal was due on February 27, 2004. He filed a notice of appeal on 243. Beard, 548 U.S. at 537 (Thomas, J., concurring) (quoting Overton, 539 U.S. at 139). 244. Banks v. Beard, 399 F.3d 134 (3d Cir. 2005), rev'd, 548 U.S. 521 (2006). 245. Id. at 148-50 (Alito, J., dissenting). 246. Id at 149-50. 247. There was one unanimous decision, Jones v. Bock, 549 U.S. 199, 223 (2007), in which the Supreme Court decided that the U.S. Court of Appeals for the Sixth Circuit had imposed excessively restrictive rules related to the exhaustion of remedies requirement under the Prison Litigation Reform Act. 248. 551 U.S. 205(2007). 249. Id at 206-07. 250. Id at 207. 251. Id at 214. 20 1 1 ] THE CHANGING SUPREME COURT 883 February 26, only to be told that he was too late because his deadline had actually been February 24. It is intolerable for the judicial system to treat people this way, and there is not even a technical justification for condoning this bait and switch.^^^ Souter argued that the Supreme Court should use its equitable authority to recognize an exception under the circumstances of this case in order to advance the interests of faimess.^^^ Although this case did not concern constitutional rights for prisoners, it may provide a clue about the sensitivity of Chief Justice Roberts and Justice Alito to issues of fairness in cases involving prisoners and their legal claims. A similar split in the Court emerged in Haywood v, Drown^^"^ concerning New York's effort to eliminate its state courts' jurisdiction over federal constitutional rights lawsuits by prisoners.^^^ In this case. Justice Kennedy provided the decisive fifth vote for Justice Stevens's majority opinion that employed the Supremacy Clause to invalidate New York's actions.^^^ ChiefJustice Roberts and Justice Alito, along with Justice Scalia, joined Justice Thomas's dissenting opinion.^^^ It is possible that this case is most revealing about the Justices' disagreements concerning the Supremacy Clause and federalism rather than prisoners' rights. There is no question, though, that New York's actions were directed specifically at prisoners and their options for pursuing constitutional rights claims in the courts. C Schwarzenegger v. Plata In November 20 1 0, the Roberts Court, including the four Justices appointed after the close of the Rehnquist Court era, heard oral arguments in Schwarzenegger v. Plata?^^ The editors of the New York Times called it "the most important case in years about prison conditions."^^^ California challenged an order from a special three-judge district court requiring a reduction in prison populations.^^^ The lower court found that prison overcrowding was a cause of significant Eighth Amendment violations in conditions ofconfinement, especially with respect to inadequate medical care.^^' The underlying litigation had been ongoing for twenty years and had been the subject of seventy previous district 252. Id. at 215 (Souter, J., dissenting). 253. See id. at 216-17. 254. 129S.Ct. 2108(2009). 255. Mat 21 11-12. 256. Id at 21 17. 257. Id. at 21 18 (Thomas, J., dissenting). 258. Coleman v. Schwarzenegger, No. CIV S-90-0520, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009), appeal docketed. No. 09-1233 (Apr. 14, 2010). 259. Editorial, The Crime ofPunishment, N.Y. TIMES, Dec. 6, 2010, at A26, available at http://www.nytimes.com/2010/12/06/opinion/06monl.html. 260. Marcia Coyle & Tony Mauro, Hot Bench in Prison Battle, Nat'l L.J., Dec. 6, 20 1 0. 261. Id 884 INDIANA LAW REVIEW [Vol. 44:853 court orders, none of which remedied the prison condition problems.^^^ The questions and concerns raised by individual Justices at oral argument may provide clues about their orientations toward prisoners' rights. Justice Alito questioned the prisoners' attorney about the necessity and potential consequences of a reduction in prison populations.^^^ He appeared to be quite skeptical about the desirability of reducing prisoner populations, both because he thought it was merely an indirect means of remedying the prison medical care issues and, more importantly, because he anticipated grave potential harm to society.^^'* The former prosecutor used stark terms to raise concerns about a possible increase in crime: If—if I were a citizen of California, I would be concerned about the release of 40,000 prisoners. And I don't care what you term it, a prison release order or whatever the . . . terminology you used was. If 40,000 prisoners are going to be released, do you really believe that if you were to come back here 2 years after that, you would be able to say they haven't—they haven't contributed to an increase in crime ... in the State of California? In the—in the amicus brief that was submitted by a number of States, there is an extended discussion of the effect of one prisoner release order with which I am familiar, and that was in Philadelphia; and after a period of time they tallied up what the cost of that was, the number of murders, the number of rapes, the number of armed robberies, the number of assaults. You don't—that's not going to happen in Califomia?^^^ Chief Justice Roberts emphasized a similar point from a different angle by asserting that the district court did not ftilfill the requirements of the Prison Litigation Act by failing to give substantial weight to considerations of public safety in any remedial order involving release of prisoners: I don't see that the district court did what was required by the Act with respect to the plan that it's ordering. . . . It just simply said, oh, we're sure—I'm sure the State wouldn't do anything to hurt public safety—after telling the State you've got to give me a plan in 2 years that gets [the prison population down] to 137.5 [percent of capacity]. . . . Well, they said we're sure, because . . . [the district court said,] "We trust that the State will comply with its duty to ensure public safety as it implements the constitutionally required reduction." The State is saying it cannot meet the 137.5 [percent of capacity] in 2 years without an 262. Id. 263. Transcript ofOral Argument at 42-48, Schwarzenegger v. Plata, 130 S. Ct. 3413 (2010) (No. 09- 1 233), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09- 1233.pdf. 264. Id. 265. Mat 47-48. 20 1 1 ] THE CHANGING SUPREME COURT 885 adverse impact on public safety 266 Interestingly, this assertion by Roberts led Justice Sotomayor to lead the prisoners' attorney through a series of statements, effectively seeking to refute Roberts on behalf of the attorney: JUSTICE SOTOMAYOR: I have several questions but . . . I'm not sure why you have not been responding to Justice—^to the Chief Justice. Didn't the district court discuss different safe ways . . . of reducing the population — MR. SPECTER: Yes. JUSTICE SOTOMAYOR: —and said, we're not imposing them because we want the State to do—^to choose among them? MR. SPECTER: Yes, Your Honor. JUSTICE SOTOMAYOR: As I've looked at the State's final plan, I thought that they had in fact not only accepted all of the recommendations, but they added a couple of additional remedies that the court had not suggested. MR. SPECTER: Yes, Your Honor. JUSTICE SOTOMAYOR: Is it a fair statement that the district—that the three-judge panel was saying, if you do these things—^that's their finding—you can do it without affecting public safety? Wasn't that what they were saying? MR. SPECTER: Yes, Your Honor. If I didn't make that clear, I meant to.^^^ In addition, when questioning the attorney for California, Justice Sotomayor used graphic references to the nature of the problems in the prisons in order to challenge the state's assertion that it just needed to be given an additional undefined period of time to remedy the problems: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around [to] people sitting in their feces for days in a dazed state? When are you going to get to a point where you're going to deliver care that is going to be adequate?^^^ Justice Kagan's most revealing question was addressed to California's attorney when she expressed skepticism about the Supreme Court second- guessing the lower courts that had been dealing with the details of the case for two decades: Mr. Phillips, my trouble listening to you is that it seems as though you're asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the 266. Id. at 51-52. 267. Id. at 55-56. 268. Id. at 15. 886 INDIANA LAW REVIEW [Vol. 44:853 Plata case, who thought: We've done everything we can, the receiver has done everything he can; this just isn't going anywhere and it won't go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view ofthe three-judge court generally. So how can we reach a result essentially without, you know, re-fmding the facts that they have been dealing with for 20 years?^^^ Based on the questions and comments of the new Justices, it appeared that Justices Sotomayor and Kagan were likely to endorse the lower court's order to remedy the prisoners' rights violations that had remained unresolved for decades. By contrast, it also appeared that Chief Justice Roberts and Justice Alito were likely to reject the lower court's order by placing their own concerns about crime above the need to uphold the rights ofprisoners. In this case, both sets ofJustices may simply cast the same votes that their predecessors would have cast, although there is evidence that both Justice Alito and Chief Justice Roberts may be even less inclined than Justice O'Connor and Chief Justice Rehnquist, respectively, to recognize and protect rights for prisoners. ^^^ Conclusion Although many states are seeking to reduce their prison populations amid government budget crises,^^' there are still significant numbers of people held in correctional institutions—1.6 million as of the end of 2009.^^^ These individuals are entirely dependent on corrections officials for food, shelter, medical care, sanitation facilities, and the other elements ofhabitable living conditions. Living inside closed institutions, they also face risks that they could be subjected to discrimination, physical abuse, or denial ofopportunities to practice their religion unless there are mechanisms to ensure that such abuses and deprivations do not occur. The history of American corrections contains numerous examples of brutality, neglect, and horrific living conditions when corrections officials are unsupervised and unaccountable.^^^ Despite some commentators' belief that judges should avoid ordering intrusive remedies for constitutional rights violations,^^'* the judicial definition and enforcement of constitutional rights for 269. Mat 30. 270. See supra notes 2 1 0-23 and accompanying text. 27 1 . Krissah Thompson, States Reduce Prison Populations as Budgets Shrink, WASH. POST, Mar. 3, 2010, available at www.washingtonpost.coni/wp-dyn/content/article/2010/03/03/ AR20 1 0030302 1 54.html?hpid=moreheadlines. 272. Heather C. West, Bureau of Justice Statistics, Prisoners at Yearend 2009 — ^Advance Counts 1 (2010), available (af/http://bjs.ojp.usdoj.gov/content/pub/pd£^py09ac. pdf. 273. See, e.g., Pugh v. Locke, 406 F. Supp. 318, 323, 329-30 (M.D. Ala. 1976) (imposing court-ordered remedies for prison conditions deemed "unfit for human habitation" by an officer from the U.S. Public Health Service). 274. See generally RiCHARD E. MORGAN, DISABLING AMERICA: The "RIGHTS INDUSTRY" IN 2011] THE CHANGING SUPREME COURT 887 prisoners played a key role in improving living conditions and professionalizing and bureaucratizing institutions that were often administered through autocratic fiat and discretionary violence.^^^ As indicated by the preceding sections ofthis Article, changes in the Supreme Court's composition create the possibility that the nature of support for or opposition to the recognition of specific prisoners' rights has also changed. In particular, the Court has lost its staunchest, most outspoken advocate for prisoners' rights, Justice Stevens.^^^ Although newcomer Justice Sotomayor shows signs of fulfilling Justice Stevens's former role,^^'' it remains to be seen whether she will actually do so.^^^ In addition. Justice Alito is likely to be less supportive of prisoners' rights than was his predecessor. Justice O'Connor, particularly because his originalist perspective may lead him to join the other originalists. Justices Thomas and Scalia, in arguing against the existence ofall but the most minimal legal protections for incarcerated offenders.^^^ Moreover, Chief Justice Roberts is perceived to be less respectftil of precedent than was his predecessor. Chief Justice Rehnquist,^^^ so that if so inclined, he could provide an additional vote to contribute to Justice Thomas's stated desire to reconsider prisoners' rights precedent."^^^ Because the Court remains split between the Justices who are conservative and those who appear to be relatively liberal, the pace of change may depend on which Justice is next to depart and who resides in the White House at the moment of departure, thereby possessing the authority to choose the replacement. The most dramatic potential changes in prisoners' rights could develop if Justice Thomas succeeds in gaining a total of five votes to support his distinctive viewpoint. He already has the support of Justice Scalia and probably Justice Alito, the other originalist. Much will depend on whether he can gain the support of Chief Justice Roberts and whoever replaces either Justice Ginsburg (age seventy-seven) or Justice Kennedy (age seventy-four), if either one ofthem is the Our Time (1984); Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003). 275. See generally MALCOLM M. Feeley & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE Modern State: How the Courts Reformed America's Prisons (1998). 276. See supra notes 26-56 and accompanying text. 277. See supra notes 225-32, 267-68 and accompanying text. 278. Justice Ruth Bader Ginsburg could also be an outspoken advocate for specific rights for prisoners. However, she is unlikely to fulfill Justice Stevens's extended role as prisoners' rights advocate because her age and health make it unlikely that she will remain on the Supreme Court for many more terms. In 20 1 0, she reached the age of 77. See Biographies ofCurrent Justices of the Supreme Court, supra note 36. In light of her prior bouts with colon cancer and pancreatic cancer, she is likely to be nearing the end of her career. Carrie Johnson & Rob Stein, Ginsburg Undergoes Surgery for Cancer, WASH. POST, Feb. 6, 2009, available at http://www. washingtonpost.com/wp-dyn/content/article/2009/02/05/AR2009020501695.html. 279. See supra notes 2 1 7-23, 264-67 and accompanying text. 280. See supra notes 209-14 and accompanying text. 281. See supra note 2 1 5 and accompanying text. SSS INDIANA LAW REVIEW [Vol. 44:853 next Justice to retire/'^' In general. Justice Thomas argues that incarcerated otTenders possess onK those rights granted to them by the states under each state's own detlnition of "incarceration" and the deprivations attendant to incarceration.""^' Specitlcally, Justice Thomas has expressed a desire to reconsider tlie precedent o( Hsfcl/c v. inufjhU\ re\ersal of which would eliminate prisoners' limited right to medical care and eliminate the original precedent that made the Eighth Amendnient applicable to conditions inside prisons.'^"* Because he advocates that the Cruel and I'nusual Punishment Clause only applies to sentences announced b> judges and not to the implementation of those sentences in prisons, '^' achie\ ing his \ ision through the alteration of precedent would leave prisoners \\ ithout an> federal constitutional protections against inhumane li\ ing conditions and use of excessi\e torce by corrections otTicers. In addition. Justice Thomas argues that states ha\e no constitutional duty to suppK resources and supplies (such as law libraries, paper, envelopes, and stamps) to aid prisoners in preparing and submitting appeals, habeas coipus petitions, and ci\il rights lawsuits to the courts. '"^^ hi effect, if Justice Thomas were to attain his vision o( prisoners' rights by gaining sutTicient votes to eliminate existing precedents \\ ith which he disagrees, it appears prisoners w ould be left with only one limited constitutional right that Justice Thomas is willing to acknow ledge: a due process-based right of access to the courts that is limited to prisoners' access to a mail slot where the>- can place letters to a counhouse, proN ided the\ ha\e their own resources with which to write and mail those letters/'' With such a liniited version of the right of access to the courts, it would not be possible for most prisoners to file habeas petitions and other actions for vindicating legal rights. Although the vision of Justice Thomas may sound too extreme to become a realit> in our modem tw enty-first centun , due to changes in the Court's composition, he may be w ithin one vote of achieving his restrictive \ isioti and thereb\ transfonning—through extreme limitations—the supervisory role that federal courts ha\e pla\ed to protect against inhumane policies and practices in prisons. 2S2. Jusucc Ciinsbiire u as boni m I *^33. and .Uistice Kennedy was bom m I "^^o. Biographies ofCurn'nfJusfi^\s . v S:.r'\-rnc Court, supra note 36. 2S.V >\c- sur'\: notes 13^-3''^ and ac»:omp;in\ing text. 254. Xcv siir'\i note 2 lo and accompanying text. 255. X\-c' supra note 130 and accoinpanyntg text. 2S^. Xc-i- supra notes 142-44 and accompanying text. :S^ Li.