As Alana pointed out yesterday, the Supreme Court ordered California to release 46,000 convicted criminals (“the equivalent of three Army divisions,” in the words of Justice Samuel Alito) to relieve overcrowding, saying that “needless suffering and death” had resulted from putting too many inmates into facilities that cannot hold them in decent conditions.

Justice Anthony M. Kennedy, speaking for the majority in Brown v. Plata, said California’s prisons had “fallen short of minimum constitutional requirements” because of overcrowding. The result, the majority argued, was a violation of the Eighth Amendment.

Justice Antonin Scalia offered a withering and powerfully argued dissent, saying that what the Court did “affirms what is perhaps the most radical injunction issued by a court in our Nation’s history.” (Scalia felt so strongly about the decision that he issued a rare oral dissent.)

People should read the Scalia dissent (as well as the dissent by Justice Alito) for themselves, but to summarize his case: The mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it; it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated; there is no procedural principle that justifies certifying a class of plaintiffs so they may assert a claim of systemic unconstitutionality; and the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong.

“It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended—do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation,” Scalia added. “Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Justice Scalia goes on to point out that finding an entire system to be unconstitutional because it may produce constitutional violations is ludicrous; that the District Court judges engaged in a form of factfinding-as-policymaking that is outside to traditional judicial role; and that structural injunctions do not simply invite judges to indulge policy preferences but invite judges to indulge incompetent policy preferences (“Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions,” he said).

The lower court should be flexible in considering how to carry out its order, Justice Kennedy concluded his majority opinion by saying. Justice Scalia called this concluding part of the majority opinion “a bizarre coda” setting forth “a deliberately ambiguous set of suggestions on how to modify the injunction.”

“Perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this court’s responsibility,” Scalia wrote. “After all, did we not want, and indeed even suggest, something better?”

At the core of this case, then, was “the incoherence of the eighth Amendment claim.” The results were a “judicial travesty,” taking federal courts “wildly beyond their institutional capability.” And Antonin Scalia didn’t much appreciate it.

In a column written almost 20 years ago, Charles Krauthammer rendered this judgment: “Scalia stands out as the Reagan presidency’s finest legacy.” Yesterday’s dissent is a good reminder as to why that’s still the case.