Supreme Court

Conservatives Rethink Liberty vs. Order

The authoritarian element of conservative thought persists, but it may be getting weaker.

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Supreme Court
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This week, the Supreme Court made a decision that was somewhat newsworthy: upholding the right of a prison inmate to do something the prison authorities prohibit. What made it really unusual is that the decision was unanimous, with all the conservative justices signing on, and that the opinion was written by one of the most conservative, Samuel Alito.

Alito is not a staunch friend of prison reformers. In a case involving the treatment of inmates in California, he wrote scornfully, "The Constitution does not give federal judges the authority to run state penal systems. Decisions regarding state prisons have profound public safety and financial implications, and the states are generally free to make these decisions as they choose." Antonin Scalia and Clarence Thomas have been no more sympathetic.

Yet here they were, joining the court's liberals to tell the Arkansas Department of Corrections that it may not force a Muslim convict to shave his face. That demand, the court said, violates his freedom to practice his religion.

The case is a reminder of the everlasting tension within conservative thought between the rights of individuals and the power of the authorities, particularly in matters of public safety and order.

Many on the right instinctively side with police, intelligence agencies and corrections officers when their conduct comes under fire. But another strand of conservative thinking preaches the need to protect citizens against government overreaching and abuse. It's the authoritarian school vs. the libertarian school, Rudy Giuliani vs. Rand Paul.

Jack Hunter, writing in The American Conservative, says controversies like those over torture and police abuse show "there is a significant and perhaps even irreconcilable philosophical contradiction developing on the right."

But in this case, the conservative members of the Supreme Court sounded unabashedly libertarian—forcing the government to accommodate the inconvenient demands of a violent felon who follows a minority religion that is distrusted by many Americans.

The inmate, Gregory Holt, is doing a life sentence in a supermax prison for burglary and domestic battery. The Arkansas Department of Corrections bans beards (except for medical necessity) because, it says, they can be used to hide dangerous items like razor blades and needles and can be grown or removed for purposes of disguise.

Holt argued that under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), he is entitled to grow whiskers in accordance with his faith. A federal district court and a federal appeals court were not persuaded. They insisted on leaving the matter up to the people charged with running the prisons.

But the Supreme Court disagreed. Alito said the ban on beards violates that law, which limits the government's right to limit the religious freedom of prisoners. The justices had no trouble substituting their judgment for that of corrections officers.

Inmates, the court noted, could also hide weapons in their hair, clothing or shoes. "Nevertheless," wrote Alito, "the Department does not require inmates to go about bald, barefoot or naked."

Why did the conservatives on the court side with the criminal? One reason is RLUIPA, which was partly meant to limit the power of prison wardens. But part of it is that the rule affected something conservatives generally care a lot about: religion.

In 1990, the Supreme Court allowed the denial of unemployment benefits to drug counselors fired for using peyote in a Native American Church ceremony. The decision, written by Scalia, mocked the idea that religious conduct should be exempt from certain laws. "Any society adopting such a system would be courting anarchy," he proclaimed.

But conservatives soon realized that, in a society where Christianity has lost ground, laws that could burden minority religions could also burden their own. They got Congress to pass laws to head off that prospect.

One of those, the Religious Freedom Restoration Act, was crucial in last year's Hobby Lobby decision by the Supreme Court. It let for-profit employers who oppose contraceptives on religious grounds exclude them from health insurance coverage. Without the statute, a forerunner of RLUIPA, "Hobby Lobby would probably have lost," says Douglas Laycock, a University of Virginia law professor.

In that case and this one, the conservative justices showed a notable sensitivity to claims of religious believers. They also showed a new willingness to place individual liberty and autonomy above security and order.

They even dared to question whether sacrificing liberty actually enhances security. The authoritarian element of conservative thought persists, but it may be getting weaker.

NEXT: In the Era of High-Tech Law Enforcement, Who Will Keep Our Privacy Safe?

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  1. To me, it seems like a stretch. Have any of these judges that were appointed ever been diehard conservative or liberal like some thought they would?
    To me, they simply respect the freedom (both of the state and the individual) in the two cases you presented, which is not the sole domain of “conservatism” or “liberalism.”

  2. In my mind, this highlights why Libertarians are just as much of a problem as Democrats and Republicans. While I might agree with Libertarians (and Jack in particular) in principle far more than I agree with Democrats and Republicans, they all to often also pick and choose for which issues they’ll ignore state sovereignty.

    This particular issue pertained to the Arkansas state prison system. The federal government should have no jurisdiction here.

    And don’t give me that 14th amendment BS. Either you don’t believe in the Incorporation Doctrine (I don’t) or you do.

    Do I think it’s right that Arkansas wants to make this inmate shave his facial hair? No, I don’t. But I don’t live in Arkansas, and neither I nor nine robed academics in Washington DC should have any real say.

    1. Dang it, first post and not sure how (if) I can edit my comment

      “…all TOO often…”

      1. You just did it, King!

      2. Edit buttons were removed after the great edit catastrophe of ’98. At least, that’s what I’m told.

        1. *bows head in remembrance of recalled memories*

    2. The second disjunct is fine by me.

    3. Either you don’t believe in the Incorporation Doctrine (I don’t) or you do.

      I think the way they’ve done it, stuffing a limited menu gradually into “due process”, is shite.

      I think, as written, the privileges and immunities clause should be read to apply the entirety of the BOR to the states. As is right and proper, IMO.

      A quick way to test this is: Do you think states have, or should have, unlimited power to govern what you say or publish? If you don’t think the 1A applies to the states (and it doesn’t as written, and can only be applied via the 14th) then where does the limit on state power over speech come from?

      1. For that matter, I think much of the BOR, as written, applies to the States. The 1A, no, as it refers specifically to Congress. The 2A, yes, at refers to the rights of the pippul.

        But, the history of Constitutional interpretation is mostly an exercise in denying the obvious interpretation in favor of some tortured interpretation that grinds away on limitations on government.

    4. The federal government clearly has the right to protect us from “cruel and unusual punishment” conducted by States. Thus the federal government has jurisdiction.

      Punishments dished out by state governments, such as putting people in jail, would be considered kidnapping if any individual did it. Punishments restrict our freedoms that we’d normally have.

      So what’s the basis for picking and choosing what freedoms can be restricted when someone is convicted of violating the law? It’s hard for me to say when we can execute them. What’s the point of allowing a Muslim murderer, to keep his beard when he’s going to the electric chair?

      Why not restrict other freedoms besides the freedom of movement, or the freedom to keep money you earn? To me, this is an area government needs to sort out, and isn’t so simple. My preference is to restrict their freedom of movement or their ability to keep their money from the government and victims, but leave other freedoms, as much as possible, to remain. But then, I’ve personally not given this subject much thought, and would like to hear from experts.

  3. That demand, the court said, violates his freedom to practice his religion.

    “Peyote ceremony in Flying Eagle’s cell!”

    Less snarkily — what say the Supremes to ol’ Gregory-in-for-life-Holt pointing out that he hasn’t made his Hajj to Mecca yet?

    1. I would guess that if that claim came up in court, the judge(s) would say that keeping him in prison is the least restrictive way of promoting the compelling interest in keeping felons behind bars.

      1. Howsabout we tell him he’s free to go to Mecca, as long as he doesn’t come back? Win-win?

        1. Sure, so long as he pinky-swears not to re-enter the United States.

  4. In that case and this one, the conservative justices showed a notable sensitivity to claims of religious believers. They also showed a new willingness to place individual liberty and autonomy above security and order.

    The first sentence is tenable; the second is hilariously misguided.

    That the conservative judges sided with the religious desires of a prisoner means nothing more that they will be consistent when they already agree with the law.

    They have fucked over liberty and autonomy in favor of security and order dozens of times in the last few years.

    1. Pretty much this. It should also be pointed out that two of the liberal justices (Ginsburg and Sotomayor) filed a short dissent that said they only agreed with this decisions because the guy keeping his beard didn’t affect anyone else.

      So even the liberals did not endorse religious liberty in any significant way. All they agreed to was the proposition “you have religious liberty so long as it doesn’t offend or have any effect on those around you”. Pretty fucking hollow endorsement.

    2. It’s both the liberals AND conservatives. Both groups only believe in liberty for THEIR causes.

      Unfortunately, the only agreements they ever have is on when the state increases its power.

    3. This entire decision is very weak sauce in my book. The messed up thing about this and Hobby Lobby is that instead of defending religious freedoms, they are conferring special privileges on people because their religious beliefs. Beliefs that they chose to believe (or chose to pretend to believe).

      If I find abortion and certain kinds of contraception to be wrong and completely immoral, I still can’t choose not to provide that insurance to employees on the grounds of General Principal. But, if I claim Religion, I can make that choice.

      If I get sent to prison in Arkansas, I can’t grow a 1/2 inch beard because I find it stylish. But, if I claim that the flying spaghetti monster wants me to do it, then I have a right to grow that beard.

      Religion should not be an exemption from laws. Either the law is truly worth having (murder) and a religion that support murders should be told to eat it. Or, the law isn’t worth having (drugs, Arkansas prison beards, Hobby Lobby) and law should be struck down for all.

      Allowing special exemptions to laws for religion violates equal protection under law for the non-religious.

  5. The inmate, Gregory Holt, is doing a life sentence in a supermax prison for burglary and domestic battery.

    Am I the only one who thinks this is the problem and not the fact that he had to shave his beard?

    Think about this for a moment. The guy is doing life under about the most harsh circumstances imaginable for burglary and beating up his wife and the Court is only concerned with the fact that they made him shave his beard.

    How about we stop giving people life sentences for petty crimes? Then maybe it won’t be such a big deal if they have to shave their beards when they are in prison.

    Our justice system has gone completely bat shit insane.

    1. Hey, three strikes and he was out (I’m sure). I mean, if he had gotten just some slap on the wrist 10-15 in a supermax, he might get out and hit someone else.

      Also, even a supermax is far from the most harsh circumstances imaginable. I mean I wouldn’t want to go to one, but if that’s the worst you can imagine, I mean come on.

      1. I don’t have much of a problem with three strike rules (for crimes with victims).

        How hard is it to not violate the rights of others? You do it 3 times and you are a fucking shitbag.

        1. The second order effects of such a rule are not so good. First, since the death penalty is now rare, it gives a whole bunch of people the incentive to murder the witnesses to their crime. If I am facing life and don’t have to worry about the death penalty, what deterrence is there for me not to commit murder if it helps me get away?

          Second, it sticks the tax payer for the bill of housing people who are not particularly dangerous. It is one thing to let a real killer lose. But is it really worth it to spend the millions necessary to confine someone for decades to eliminate the risk they might stick up a liquor store? I don’t think so.

          Lastly, it is just grossly unjust. I am as hard nosed as they come with actual criminals. Even I however think a life sentence for even a career fuck up like this guy is wrong. Life sentences should be reserved for really horrible crimes, not a string of small ones.

          1. Several issues with your comment:

            If I am facing life and don’t have to worry about the death penalty, what deterrence is there for me not to commit murder if it helps me get away?

            Why don’t people diagnosed with terminal illnesses go out and murder the people they don’t like? My point being, that if it is simply the law that keeps you from killing other people, you have no place in society to begin with.

            Lastly, it is just grossly unjust. I am as hard nosed as they come with actual criminals.

            Have you ever been wronged by a repeat offender? I have. I put it to you, that if you had, you might feel differently.

            I can see someone making a mistake, paying for it, and going on to become a productive individual. Hell, you could even fuck up twice. BUT, it’s not that hard to not break the law (real laws…with victims). There are those people out there who will NEVER stop harming others.

            The guy that wronged me is a repeat offender. He makes his “living” defrauding and stealing from others. He does so intentionally and without remorse. I’ve personally spoken to MANY of his victims and there are many, many more. Such a person is truly evil and shouldn’t be allowed to continually violate the rights of innocent people. He needs to be locked up and left to rot.

            1. Many, many times is different that three.

              Sometimes, one of the strikes is bullshit. Like a kid just fucking up. I know I’ve stolen at least three times in my teens, but now, of course not.

              I agree with John. I don’t know about this dude specifically, but I know there are people that have way too long sentences.

              Life? I mean, its proven that after a certain age, most people chill out.

              1. Sometimes, one of the strikes is bullshit.

                Agreed. That’s the reason for 3, instead of two. Other than stealing a cupcake at the age of 7, I have never intentionally violated someone else’s rights. It’s not that difficult of an accomplishment.

                This guy is is 55. Occupation contractor professional con-man. Sorry, fuck him. He has no concept of right and wrong and will continue to fuck people for the rest of his life. He doesn’t care about the rights of others, I’m certainly not going to worry about his.

                1. Not saying he shouldn’t be in jail, and not for a long time.

                  Specifically life and supermax. Those are my arguments.

                  1. Those are my arguments.

                    Fair enough.

                    But here’s what is going to happen…he’ll get out in a very long time and he’ll do EXACTLY the same thing to more unsuspecting innocent people. He’s proven he will.

            2. Why don’t people diagnosed with terminal illnesses go out and murder the people they don’t like?

              Because they are not criminals. You are telling me that you want to lock anyone with three strikes up for life and then in the next breath telling me that we don’t have to worry about deterring them from murdering witnesses to avoid that. If we don’t have to worry about them doing that, why do you want to lock them up? And if you do want them locked up, then there is at least some chance they will commit murder to avoid that.

              Have you ever been wronged by a repeat offender? I have. I put it to you, that if you had, you might feel differently.

              If you are wronged by someone, would you feel better if they are a first offender? I wouldn’t. If the government has a special duty to lock people up forever because they might commit a crime if released, then why not two strikes and its life? Or one strikes? Hell, how about just locking everyone up?

              That is a nonsense argument and no different than me telling you “what if you were a victim of a terrorist” in response to your objection to my wanting pre-emptively bomb a bunch of people. “But they might do harm” does not justify injustice.

              1. then why not two strikes and its life? Or one strikes?

                Do you ever read what I say, John, or do you just read what you think I said?

                I can see someone making a mistake, paying for it, and going on to become a productive individual. Hell, you could even fuck up twice. BUT, it’s not that hard to not break the law (real laws…with victims). There are those people out there who will NEVER stop harming others.

                Sometimes, one of the strikes is bullshit.

                Agreed. That’s the reason for 3, instead of two.

                1. Either the risk to society or the severity of the crime is such that the sentence is just or it isn’t. There is nothing magical about one, two, three or any other number of crimes. The problem with three strikes is that it sets an arbitrary number to decide a very specific issue. There are some people who are either such a threat or commit such a horrible crime, they should be locked away forever on their first crime. There are other people who commit low lever crimes such that it is hard to see how any number of convictions would justify life in prison.

                  Three strikes has the same flaw minimum mandatories do. The core of any moral Justice system is the idea that every case is individual and dealt with according to its unique set of circumstances. Once you start making blanket rules, you are just ensuring injustice.

        2. What if his first two strikes were for (say) drug possession?

          1. (for crimes with victims)

            In my opinion, there needs to be a victim for their to be a crime. Punishing someone for committing a victimless crime is immoral.

            1. I kan reed gud.

      2. I can think of no worse fate than being locked in a small steel room alone twenty three hours a day only to be let out for an hour to wonder alone in a slightly larger cage.

        I would happily take being worked and starved to death in the Gulag than decades of that. Super Maxes are one of the most evil things our society has ever done. They are in my opinion worse than the death penalty. It better to kill the person than just spend years torturing them, which is what Super Max does.

        1. Agree John. Just build a big cage, stick everyone in it, and just drop food every now and then.

          I’ve watched a lot of the lockup episodes and I would think I could find a way to strangle myself before doing that.

          People literally go insane.

    2. Here’s the corrections system’s Web page on the guy. I don’t know if a life sentence is excessive or not, but he has had some serious legal entanglements.

      http://ow.ly/HM0gA

      1. There isn’t a single crime on that list that exactly shocks the conscience. He appears to be a habitual fuck up. Life in Super Max is for people who murder children or are serial rapists or something.

        1. You have a point there.

  6. Right wing authoritarianism is weakening? Somebody should tell Chris Christie.

  7. I wonder what other rights convicted criminals have? 2A? 4A?

    I thought the whole idea behind due process under the law was to take rights away from people as punishment for their misdeeds?

    An interesting debate.

    1. Sure, but the Court was following Congress’s lead – Congress specifically protected the religious freedom of “institutionalized persons.”

      Some restrictions on rights make sense in a prison setting (eg, no guns), but some rights should remain – the most obvious examples being the right to petition the Governor for a pardon, and to petition the courts for relief (see the right to petition, 1st Amendment).

      Since they clearly don’t lose *all* rights, then the question arises, which rights should they lose and which rights should they retain? And religious freedom (unless the prison can justify a restriction) seems like one of those rights.

    2. I agree with you. The court is saying the state has the right to lock you in a cage for life but doesn’t have a right to tell you to shave your beard. It is fucking nuts.

      1. Take that to the logical extreme – can they serve a Muslim or Jewish prisoner only pork?

        Can they deny a Catholic prisoner access to the sacraments, or deny a Protestant prisoner access to his minister? What are prison chaplains for, if not help the inmates exercise their religious freedom?

        1. If they have a colorable reason for doing so other than we want to punish them, sure. Suppose, serving pork saves money and is cheaper. Why do I have to pay extra so some prisoner can live by their religion?

          I am pretty sure God will forgive them for eating pork or missing mass because the prison they were in wouldn’t let them.

          1. Traditionally, serious believers have preferred death to betraying their religion – there are numerous instances.

            Stick to the diet example – by serving only pork, you’re forcing the Jewish and Muslim prisoners to choose between apostasy and starvation. Even if they didn’t get a death sentence!

            Why should Jewish and Muslim prisoners be *threatened with death* while similarly-situated prisoners (eg, prison gang leaders) get to live?

        2. Why does religion deserve a special status?

          Catholics like going to mass. I like going to strip clubs. Muslim and Jewish don’t like pork. I don’t like veggies. What level of accommodation do my preferences deserve?

          Why does Religion grant them special rules that aren’t available to the non-religious? Can I invent my own religion? Who determines legitimacy of a religion? Who decides the legitimacy of one’s belief in a religion?

          Laws (or other rules/policies/etc from gov’t agencies) are either valid for all or they need to be struck down.

          1. People who advocate your sort of absolutism are basically Burke’s “political geometricians” – they would force living human beings to conform to the neatness of a mathematical diagram, no matter the real-world consequences.

            In the real world, prisoners with serious religious commitments are better candidates for rehabilitation than those without. Out of prison they were generally heathens who cared only for themselves – if they’re to be rehabilitated they need to develop an appreciation for values other than their own desires. Religion can do this. To tell these believers they must revert to their pre-conviction heathen state is to throw a wrench into their rehabilitation.

            1. I think my issue is related to the problem that this is based on a neat little conformed concept of religion. If someone doesn’t belong to a religion or believe in religion, but believes eating pork is wrong, their belief is just as valid as the Jewish belief. If conceding to the religious belief of one prisoner is a reasonable imposition, then making the same concession to another prisoner who isn’t religious should be equally reasonable.

              I’m not seriously advocating letting prisoners go strip clubs, I support letting prisoners go to mass and not eat pork, I support letting them grow some amount of a beard. I just don’t support making these allowances contingent on some expressed religious belief.

              If it is contingent on religious belief, that’s where you run into issues of defining whether someone’s religion is legitimate (Christianity vs. Scientology vs. Spaghetti Monster) and whether that person’s belief is legit or just adopted for convenience.

              That said, I also recognize the need for some limitations on the exercise of religion (particularly in jail). Sikhs carrying a kirpan in the real world is just fine. But I don’t think we can allow that in prison.

          2. Why does religion deserve a special status?

            Because the first amendment gives it one. It is really that simple. The Amendment doesn’t’ say my right to choice of NFL teams or choice of dress is protected. It says “free exercise of religion”

            Religion gets special treatment in the BOR just like guns do. You wouldn’t let progs write the 2nd Amendment out of the BOR. So don’t write out religion form the 1st Amendment just because you don’t like it. The document says what it says. If you don’t like it, pass an amendment.

            1. Agreed and I certainly wouldn’t support removing religion from 1A. Also, in trying to use humor, my examples probably weren’t the best. I asked that first question mainly in the context of prison. In that situation, the impact of BOR is limited. Some thoughts on that in response to the comment above.

              In the real world, I think my issue relates to taking an overly narrow view regarding what laws would be an acceptable imposition on freedom. For example, if I am an atheist that believes birth control is immoral, do I have fewer rights than Hobby Lobby in determining what insurance I will provide for employees? I genuinely believe that the law/courts would view someone’s moral/belief system as less important if it didn’t conform to some accepted, popular religion.

              In short, I don’t want to delete religion from 1A, I would prefer to expand on that protection. If a law is unacceptable because it forces someone to violate their religious belief then the law should be seen as unconstitutional instead of simply granting an exception to those whose (organized) religious belief is offended.

      2. I see a lot of Muslims running around with shaved faces. It is clearly NOT a requirement.

        Since we’ve already opened the can of worms and decided that religion is special, and that some religions are more special than others, I think it is reasonable in prison to allow only those religious practices which are deemed “essential”.

  8. they simply respect the freedom (both of the state and the individual)

    What

    the

    fuck?

  9. And maybe I am just too cynical but I find it pretty depressing that the big victory for individual rights this term involved the rights of people in prison. Seriously, that is how bad things are now. The best we can hope for is to keep a few rights once we are in prison.

    1. To put it more optimistically – the Court is willing to protect the religious freedom *even* of people in prison, which is a good sign for the rights of people on the outside – if convicted felons have rights, it will be hard for the Court to deny rights to law-abiding persons.

      1. Right. To judge a country, look to how they treat the powerless, and the weak.

        1. Okay. We are locking this guy in what amounts to a sensory deprivation chamber for the rest of his life. I fail to see how letting him grow his beard makes us look any better.

          1. It’s absolutely horrible. But, at least we pretend he still has some rights. As opposed to Turkey, India, or say Venezuela where you may be imprisoned, stuffed in a dark hole, forgotten, and left to die.

          2. Not that it takes away from the 23 hours of solitary confinement (and I agree with you, John, that his placement in a supermax for one count of burglary seems…excessive) but I thought prisoners had to be given access to read materials, etc. It’s been a while since law school and maybe I’m confusing that with the “materials related to their defense” allowance. Anybody know?

  10. Chapman brings up here what I call the quantitative theory of gov’t. It’s the idea abroad that regimes can be pretty well defined according to where they lie on a spectrum between permissiveness & control, and that those are the necessary trade-offs in society, i.e. more of one leading to less of the other, rather than singling out the details for their effect on freedom. Fortunately Chapman doesn’t believe in that theory, so he’s not as bad as he could be.

  11. RFRA and RLIUPA are unconstitutional; allowing anyone an exemption from law based on religious belief is the essence of establishment of religion, negatively. Decision for plaintiff based strictly on first amendment grounds, given zero state interest. Religious expression prevails simply as speech.

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