Wilkinson v. Austin - Oral Argument - March 30, 2005

Wilkinson v. Austin

Media for Wilkinson v. Austin

Audio Transcription for Opinion Announcement - June 13, 2005 in Wilkinson v. Austin

Audio Transcription for Oral Argument - March 30, 2005 in Wilkinson v. Austin

William H. Rehnquist:

We'll hear argument now in No. 04-495, Reginald Wilkinson v. Charles.

E. Austin.

General Petro.

James M. Petro:

Mr. Chief Justice, and may it please the Court:

The purpose of any hearing process is to get a better answer.

If the question is what happened in the past, an adversarial fact-finding can help provide the answers.

If, however, the question seeks to look forward and predict future behavior, then a slightly more limited procedure will serve to expedite and arrive at the best possible answer to this predictive question.

Antonin Scalia:

General Petro, before you get into the details of why... why you think the process here was all that was due, I'm... I'm more concerned about the preliminary question of whether there was a liberty interest here.

I... I know you haven't challenged the existence of it, but I'm not sure that lets me off the hook.

We... we had a case some years ago in which both sides apparently wanted the statute in existence and they conceded in the... in the court of appeals that the statute existed and wanted us to say what this presumptively existing statute said.

And we held, since there was serious doubt about whether the statute had been properly enacted, we had to reach that question first because we were not going to speculate on what a, you know, hypothetical statute said.

And I think you're asking us to do sort of the same thing here.

You're... if... you know, without even conceding or... the Government doesn't concede anyway.

The United States doesn't.

You're asking us to hold that if this is covered by the Due Process Clause, what you've given here is enough.

But I don't... I don't like to speculate on... on hypothetical questions like that.

And it... it really seems to me that to say that there's a liberty interest here flies in the face of our more reasoned opinions in this area, especially Sandin which... which has some language that's... that's almost... almost right on point.

We note also that this... where is it?

Conner's confinement did not exceed similar but totally discretionary confinement in either duration or degree of restriction.

I... I don't understand how this person has a liberty interest in not... in not being put in a maximum security facility.

Presumably you could put all your prisoners in maximum security.

I mean, you don't pull their fingernails or anything, do you?

James M. Petro:

No... no, we don't, Your Honor.

Antonin Scalia:

So there's... there's no Eighth Amendment problem.

James M. Petro:


Antonin Scalia:

So if you wanted to, you could put all of your prisoners in maximum security.


James M. Petro:

Yes, I agree, Your Honor, that we could.

Antonin Scalia:

So where is the liberty interest here?

I don't understand.