In the almost three years I've been covering the Supreme Court, the one question I am asked most often, at least by lawyers, is: "Who's the best oral advocate you've ever seen before the court?" I usually equivocate. I'm a huge fan of former Solicitor General Seth Waxman, for instance. And current SG Ted Olson is always superb. But I think my immutable choice for best oral advocate ever to appear before the U.S. Supreme Court is Associate Justice Antonin Scalia. While Scalia is a distinguished jurist, I'm not sure he always gets the credit he deserves on those days, like today, when he actually finds himself both hearing and arguing a case at the same time.
And let me tell you, Hope v. Pelzer is not a pretty case to argue. Larry "Most-Ironic-Last-Name-Ever" Hope was a prisoner at Limestone Correctional Facility in Alabama. Following two incidents of alleged misbehavior on a chain gang, Hope was handcuffed to a hitching post in the prison yard. The first incident happened after a fight with another inmate. Hope was only chained to the hitching post for two hours, when the guards determined that the other guy had started it. During that time, he was offered water and bathroom breaks every 15 minutes. All this was recorded on a prison activity log.
The second incident took place a month later. Hope alleges he fell asleep on the bus en route to a work site and awoke with a guard choking him. An altercation ensued. This time Hope was brought back to Limestone and chained (with his arms at head level) to the hitching post for seven hours. He claims he was given water only once or twice in that time, offered no bathroom breaks, and left in the hot sun without a shirt, while guards taunted him by giving water to nearby prison dogs. Hope sued eight of the guards. The district court granted the guards' motion to dismiss, finding that they had "qualified immunity" from suit. Qualified immunity protects government officials sued for wrongs committed in the course of their jobs. In order to be immune from suit, state employees must show they didn't violate "clearly established statutory or constitutional rights" about which a reasonable person with their job "would have known."
To overcome the prison guards' immunity claims, Hope thus needed to get past two hurdles. First, he needed to show that the guards violated his right to be free from "cruel and unusual punishment" as protected by the Eighth Amendment. Next, he needed to show that the guards would reasonably have known they were violating his rights. The trial court felt he had not met these hurdles. On appeal, the 11th Circuit Court of Appeals disagreed as to the first one. They ruled that "cuffing an inmate to a hitching post for a period of time extending that required to address an immediate danger or threat is a violation of the Eight Amendment. This violation is exacerbated by the lack of proper clothing, water, or bathroom breaks." But the appeals court still found the guards were immune from suit. Why? Because in the 11th Circuit, the test for whether a right is so "clearly established" that a government worker should know he's breaking the law requires the plaintiff to show other cases with "materially similar facts."
What this means for all practical purposes—at least in the 11th Circuit—is that prison guards can torture prisoners in all sorts of creative new ways, so long as they haven't been explicitly enjoined by an earlier case from doing so. Justice Stevens has dubbed this "one free violation." The guards in this case were essentially told by the court that they could get away with this cruel and unusual treatment this one time, but do it next time, and you're in trouble. Hope appealed to the Supreme Court, claiming the 11th Circuit's "materially similar facts" test is wrong. He wants guards to be on notice that their conduct is unconstitutional, based on a more general "fair warning" standard.
In light of these facts, it's tough to defend the Limestone prison guards. Not only did they torture a prisoner with what looks like great glee, but they failed to even record the second encounter into the prison log, which makes it look like a cover-up. Even the lawyer defending the guards looks like he'd rather be tied to a hitching post for 20 minutes than forced to defend their behavior. But he's lucky because his co-counsel is Justice Scalia.
Craig Jones represents Mr. Hope, and he spends a good deal of time addressing concerns about the breadth of the holding in today's case. Chief Justice Rehnquist and Justice Kennedy would like to take on the 11th Circuit's "materially similar facts" test, without establishing a new bright-line rule about whether chaining prisoners to hitching posts is unconstitutional. Jones tells them they need only take on the second half of the case and determine whether the law is "clearly established." Scalia replies, "It's hard for a judge to say it violates a clearly established law when you don't think it violates the Constitution at all."
There is a way to defend this case by depersonalizing it from the facts (Gene Schaerr, an amicus lawyer defending the 11th Circuit's decision, will do this later this morning). But Scalia has no desire to abstract the question into constitutional theory. He wants to defend the prison guards. He asks Jones immediately, "What case establishes the use of any physical restraints is unlawful?" Jones cites Gates v. Collier—a 1974 appellate case that enjoined a whole array of cruel punishments on the 11th Circuit. Scalia replies that the Gates court can't have intended to enjoin every single punishment at issue in that case. Jones responds that indeed it did.
Soon after, Jones says that the cruelest aspect of the guards' mistreatment of Hope was their intention to leave him on the post "indefinitely." Scalia sees an opening. He tells Jones (and no, Alex Trebek, it's not in the form of a question) that the prison policy is to leave prisoners on the post "only until they are ready to go back to the work group." Jones insists that "restraint" can be used only "to maintain order or discipline" but not to punish.
The United States has 10 minutes to argue on Hope's side. Assistant to the Solicitor General Austin Schlick attempts to answer Kennedy's question about how a prison guard could have known the treatment of Hope was unconstitutional. Schlick cites Gates, the case enjoining "handcuffing the inmates to the fence and to cells for long periods of time." And Scalia is back: "Even if it's only to get him to return to the work group?" He follows up by asking whether the court can reverse the 11th Circuit but still conclude in a few years that chaining prisoners to hitching posts really is constitutional.
Then Scalia re-invokes prison Regulation 429, which allows this sort of punishment to induce prisoners to return to the chain gang. Yes, he's found a justification for the hitching post that even the state didn't proffer. So, Ginsburg points out that this justification for chaining up Hope didn't arise until appeal. Scalia wants to know whether it violates the Constitution to make a prisoner "stand in the corner." Um, no, replies Schlick. Scalia says, so if a guard tells you to stand in the corner in handcuffs it's cruel and unusual, but if he has you do it without handcuffs it isn't?
Nathan Forrester gets up to defend the guards. Justices Souter and Ginsburg question him on how courts since Gates could have just ignored its rule prohibiting hitching posts. Forrester responds that Hope was not put on the post to be "punished" but because he was "refusing to work under regulations." Ahhhh. The "Scalia" Defense.
"You never mentioned those regulations," says Ginsburg.
"It was always in the mix," replies Forrester.
Justice Breyer asks to see where in the record the guards allege that they were only tying Hope to the hitching post to cajole him into returning to work. Forrester points him to the prison log, where he cites "AR" (or Administrative Regulation) 119, which he says is a typo, actually referring to AR 429, the regulation about inducing prisoners back into the chain gang. Justice Breyer, frustrated, asks whether a hypothetical "genius" trial judge would have known that "AR 119" means "AR 429," and then he cuts right to it: "Tell me why any human being would not know this was cruel and unusual punishment."
Forrester's response: There are no cases saying that it is.
Ginsburg jumps in: "In the second instance, you can't even point to an activity log. The state didn't even write it up. They treated it like it didn't happen." Forrester tries to answer, but Scalia interrupts to point out that the prison isn't responsible for how long Hope was left on the bar. Hope could have gone back to work and been released. Then O'Connor gets involved, and today she's vintage O'Connor: "So, they could leave him hanging on this rail for as long as it takes just because there's a regulation saying he could go back to work?" Forrester, sinking fast, replies that Hope was only deprived of water during one brief three-hour stretch on the bar.
Here is where his co-counsel starts to get irritated. "Why didn't the state just say that he could have gotten off the bar?" Forrester responds that this omission in the pleadings was "regrettable." Then, when Justice Breyer starts questioning him about the deprivation of water and the heat of the day, Forrester actually begins to look toward Scalia for backup before responding. You can almost hear him mouthing, "Why don't you take this one, Nino?"
The last lawyer to speak is the aforementioned Gene Schaerr, here as an amicus on behalf of the Alabama prison guards. He does a few rounds with Souter on whether the "materially similar" facts test used by the 11th Circuit differs from a "fundamentally similar" facts test invalidated by the high court in a 1997 case, United States v. Lanier. The Silver Fox brings down the house by telling counsel that "it looks to me like the words 'materially similar' and 'fundamentally similar' are ... " he chuckles "substantially similar."
Scalia, now frustrated that the state didn't advance the appropriate defense for their prison guards' abuse of a prisoner, is silent, so the last sound bite goes to O'Connor. Test, schmest. The rule is whether a reasonable guard would have known they had crossed the line: "You mean a reasonable person wouldn't be aware that you can't restrain someone on a hitching post without water for three hours?" she erupts.
Not if that reasonable person is Justice Scalia …