420
Scalia, J., dissenting
contract renewal is virtually automatic: the more cautious the prison guards, the fewer the lawsuits, the higher the profits. In sum, it seems that "market-competitive" private prison managers have even greater need than civil-service prison managers for immunity as an incentive to discipline.
The Court's second distinction between state and private prisons is that privatization "helps to meet the immunity-related need to ensure that talented candidates are not deterred by the threat of damages suits from entering public service" as prison guards. Ante, at 411 (internal quotation marks omitted). This is so because privatization brings with it (or at least has brought with it in the case before us) (1) a statutory requirement for insurance coverage against civil-rights claims, which assertedly "increases the likelihood of employee indemnification," and (2) a liberation "from many civil service law restraints" which prevent increased employee risk from being "offset . . . with higher pay or extra benefits," ibid. As for the former (civil-rights liability insurance): surely it is the availability of that protection, rather than its actual presence in the case at hand, which decreases (if it does decrease, which I doubt) the need for immunity protection. (Otherwise, the Court would have to say that a private prison-management firm that is not required to purchase insurance, and does not do so, is more entitled to immunity; and that a government-run prison system that does purchase insurance is less entitled to immunity.) And of course civil-rights liability insurance is no less available to public entities than to private employers. But the second factor—liberation from civil-service limitations— is the more interesting one. First of all, simply as a philosophical matter it is fascinating to learn that one of the prime justifications for § 1983 immunity should be a phenomenon (civil-service laws) that did not even exist when § 1983 was enacted and the immunity created. Also as a philosophical matter, it is poetic justice (or poetic revenge) that the Court
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