Might a challenge to extreme solitary confinement for over a quarter century reveal if any current Justices are truly textualists and originalists?

The question in the title of this post is prompted by this New York Times article discussing this notable recent Supreme Court petition raising an Eighth Amendment challenge to extreme solitary confinement.  The headline of the NYTimes piece sets the table: “27 Years in Solitary Confinement, Then Another Plea for Help in Texas: Dennis Hope, who has been held in solitary confinement in a Texas prison for more than half his life, asked the Supreme Court to set limits on prolonged isolation.”  I recommend the full NY Times piece, and here are excerpts (with links from the original):

Dennis Hope has spent 27 years in solitary confinement in a Texas prison, in a cell that is 9 feet long and 6 feet wide — smaller than a compact parking space.  “It’s three steps to the door and then turn around and three steps back,” Mr. Hope, 53, wrote in a recent letter to his lawyers.

His only human contact is with the guards who strip-search and handcuff him before taking him to another enclosure to exercise, alone.  He has had one personal phone call since 1994, when his mother died in 2013.  He suffers from depression and paranoia and fears he is going insane.

Last month, Mr. Hope asked the Supreme Court to consider whether such prolonged isolation can violate the Eighth Amendment, which bars cruel and unusual punishments.

Prison officials in Texas do not seem concerned about Mr. Hope’s lawsuit. Last week, they told the Supreme Court that they waived their right to respond to his petition seeking review in his case, Hope v. Harris, No. 21-1065.  In their appeals court brief, the officials wrote that “Hope has no plausible Eighth Amendment claim.”…

[I]t is quite rare for prisoners to spend decades in isolation.  “We’ve only identified 12 prisoners outside of Texas who have spent more than 20 years in solitary confinement and who aren’t on death row,” said Easha Anand, one of the lawyers from the Roderick & Solange MacArthur Justice Center representing Mr. Hope.  She acknowledged, however, that complete data are hard to come by.

Mr. Hope was sentenced to 80 years in 1990 for a series of armed robberies and landed in solitary after he escaped from prison in 1994.  He eluded capture for about two months, during which he stole a car at knife point from an 83-year-old man and robbed four grocery stores.  In 2005, after 11 years in solitary confinement, a committee of prison security personnel concluded that Mr. Hope was no longer an “escape risk,” according to court papers.  But prison authorities have kept him isolated….

As the court has grown more conservative, the arguments against prolonged solitary confinement have shifted. Mr. Hope’s lawyers at the MacArthur Justice Center told the justices in his petition seeking review that the practice was inconsistent with the original understanding of the Eighth Amendment.

Solitary confinement was, they wrote, “unheard-of at the founding, attempted and quickly aborted in the following centuries, and resurrected only with Mr. Hope’s generation of prisoners.”  The petition drew on the work of John F. Stinneford, a law professor at the University of Florida whose work on the original meaning of the Eighth Amendment has been cited with approval by the court’s conservative majority in cases on methods of execution.

As a matter of text, I have quite a hard time coming up with a better set of adjectives than “cruel and unusual” to describe the decision of Texas prison officials to keep Mr. Hope punished with solitary confinement for nearly two decades after concluding he was no longer an escape risk.  So, though I might be just a simple-minded textualist, I would think most true textualists would see real strength in the argument that Texas is violating Mr. Hope’s Eighth Amendment right to not have “cruel and unusual punishments inflicted.”  Notably, the text of the Eighth Amendment speaks to punishments “inflicted” and not just those “imposed” (which is the term used for the prohibition of excessive fines).  This precise text of the Eighth Amendment has always led me to see all of actual punishment administration, and not just formal punishment imposition, to be of constitutional concern and part of what is constitutionally limited by the  text of the Eighth Amendment.

As a matter of original meaning, I have long been a fan of Prof Stinneford’s effort to unpack and understand what an originalist approach to the Eighth Amendment might mean for modern constitutional law and limits on the infliction of modern punishment.  Critically, though, whether one fully embraces or questions Prof. Stinneford’s Eighth Amendment analysis, I am not aware of any originalist arguments that the Eighth Amendment does not place some judicially cognizable limits on way defendants get punished.  Justice Scalia, in his 1991 originalist opinion assailing Eighth Amendment proportionality review in Harmelin v. Michigan, repeatedly noted that “the cruel and unusual punishments clause was directed at prohibiting certain methods of punishment” and that “the Clause disables the Legislature from authorizing particular forms or ‘modes’ of punishment — specifically, cruel methods of punishment that are not regularly or customarily employed” and that it “was designed to outlaw particular modes of punishment.”  In other words, the O.G. originalist on the Supreme Court was quite clear that the kind of extreme punishment administration Eighth Amendment claim raised by Mr. Hope is exactly the type of constitutional claim that the Framers wrote the Eighth Amendment to be cognizable by courts.

I suspect there could and likely will be some advocates for extreme solitary confinement who develop textualist and originalist arguments to defend how Texas has been punishing Mr. Hope.  But, I still think any true textualists and/or any true originalists would still be quite inclined to grant certiorari on this significant claim so that the textualist and originalist arguments on these important matters could be developed through full briefing and thoughtful reflection.  But if these strong claims are just rejected entirely and summarily at the cert stage, I will be incline to think “fair-weather” textualism and originalism defines the work of many justices.  I want to believe strict fidelity to the text of the Constitution means more than reaching policy conclusions that a judge finds appealing, and maybe this case will restore my faith that some of the talk of textualism and originalism is not just about getting to certain results in certain cases.