well your argument first this morning in case thirteen sixty eight twenty seven holt versus hobbs was laycock mr chief justice in may please the court forty other prison systems permitted periods without a going through limit arkansas prohibits even half an inch in their brief they reject every means that courts have devised to evaluate their testimony so what they really seek is absolute deference to anything they say just because they say it and that would be to repeal the statute de facto there may be deference to prison officials but there must be concrete limits to that difference if a prisoner want is their religious requirement is that he grow a full beard isn't it now let's assume i'm in a religion that requires polygamy i mean could could i say to the prison well ok you know testified that religiously half an inch is better than nothing and he explained that in terms of a death that he referenced he's a very difficult situation i don't think you should be penalized for being reasonable here we are pretty extreme  full beard that's correct your honor but i mean you're really just making your case too easy i mean one of the difficult issues in a case like this is where to draw the line and you just say well we want to draw a line and half inch because that lets us win and the next day someone's going to be here with one inch and maybe it'll be you and then you know two inches it seems to me you can't avoid the legal difficulty just by saying all we want is half an inch well most of the cases seek a full beard or full hair and sooner or later you will have to decide  cases but this case he made a personal decision to limit his requests the court explored expressly limited the question presented so this case is only about but we have to decide this case pursuant to generally applicable legal principle and that legal principle is one seems to me that demands some sort of a limit and if you're unwilling to articulate anything limited to the principle itself it becomes a little bit difficult to apply it say well we don't know what the limit is  you're only asking a half inch will apply had a theoretical legal structure and say you fall within it well i think you know the limit has to be determined on a record in a case that is seeking a longer beard i think you know what the larger it issue than just half an inch that this case presents is how do you administer the legislative history suggests deference to prison officials in the context of a compelling interest standard and  this was improvidently granted i don't want to do these cases half inch by half inch let's let's take a case that involves a full beard it's case will be one inch that one and a half inches to ensure that they're not going to come in that order the next case is going to be most likely the next he's going to be a full beard because that's the great bulk of cases this case is a limited question presented as a serious question of statutory interpretation the courts below essentially applied the pre roopa constitutional standard they give a centrally unlimited deference to the prison official has said what is this court said about this then and under a little bit with reference to prison you're only a prisoner lupa cases cutter and that was a constitutional challenge so this is you do you think we move to displace the sternness the right standard it was clearly intended to replace turner it textually replace is turner and what is the test deference is due or how that how that should be administered the textural standard is clearly compelling interesting least restrictive that you put your insert practical terms the chief justice sas you know what's the legal principle that of deference in the context of a compelling interest test we think the more reason to inform their explanation the more deference is due to do they give concrete examples of specific harms do they treat similar risks the and it and it somewhat undermines all their other claims about about a half inch here this is in some ways like the case justice alito wrote in newark on the third circuit the medical exception undermines all the alleged reasons for not intuitions that this couldn't possibly advance the state's interest but for the most part in these cases there will be some incremental with respect to the interests that the state  has so whether it's a full beard or whether it's long hair or whether it's a turban they'll be some ability to say even though it's just a teeny tiny there is some increase in prison security that results from  this practice and i guess i want to know when this really fits in with several of the other questions that have been asked is how do we think about that question in the context of the statute i think they have to show material as the phrase in the government's brief i think it's hopeful material effect on their security situation any teeny tiny risk however small is another way of de facto reviewing the statute that you can always imagine some teeny tiny risk and what point does it become something that we say yes we have to take that into account well i think material or significant may be the best we can do they say for example that in twenty eleven they confiscated a thousand cell phones i don't think a half inch beard would change that number but if we went to a thousand and one or a thousand and ten i don't think that's material if it goes to eleven hundred that's a significant increment but they have to show some material effect on their security situation and here where they allow beards for many years where forty three states allow beards there should be plenty of examples if it were a problem and this is not something it's so dangerous no one has tr it so there should be plenty of examples and in fact they have no examples of anything hidden in beards and certainly not in a very short beard such as half an inch size you know this idea of deference comes from legislative history in that very same way just leave history said post hoc rationalisations exaggerated fears mere speculation are not enough and it's for the judiciary to distinguish the two i think what we have in this case is exaggerated fears and post hoc rationalization well the ide the problem with difference i think is that if you accept the fact that there is a point at which it does become a problem full beard  with the turban then you then there's the question of how you draw the line and drawing the line it strikes me maybe the point at which you will consider deference to the prison administrator you take deference entirely out of the equation by saying look we're only asking for half an inch or haven't taken different set of the equation but we only ask for half an inch and when they offer so little evidence and no examples and no consideration of solutions elsewhere they haven't done anything to deserve deference haven't shown expertise and and even with deference and even some degree of deference it doesn't make out a compelling interest on these facts and that's the question presented to it you know we seem to be arguing they say no beards you say half inch is ok and then the here would establish a right to a half inch beard for all prisoners on this record and unless some other state made a very different showing all prisoners were generally what happened i but some are and some you can't see the skin should that hath inch be applied to that person or wouldn't be a different set of facts in that case to consider well  state might be able to show that's a different set of facts but but the question is not just is it conceivably imaginable that some prisoners some work i'd simply and a half inch beard but could he hide something there that he couldn't much more easily more if god tells you to grow them right well you know i think that's right and again subject to somebody producing evidence that they were wrong about some having spirits but i think yes you know it well really subject i mean who whose burden is in that i mean it is the state's burden that is explicit in the statute this is an affirmative defense we're talking about of compelling interest and least restrictive means and you know the the only limit to impose on the hair on top of your head is you can't extend below the middle of the neck so you can have long hair curly hair afros on top of your head without a wink of women who the dimension of hair on top of your head and hair on the front of your head is it's not even gnawing a half inch religious beard would be the least restrictive means to further a compelling interest is it your position that if what ninety percent of other of other institutions security interests and prisons are compelling but the burden that poses upon the state is a burden to show that the means selected that is an aisle of a half inch beard is the least restrictive means to further that interest in this case that that is a showing to ask the made in court it is something that congress aciphex lee recognize would be a show i understand that but i i'm asking what is the relevance of the fact that other relevant we going to say whenever an institution comes up here that that has a restriction which other institutions of the same type do not have for at least a large majority of them it's so facto bad no i don't think it's dispositive factor however it significantly undermines the state showing that a similar restriction could not be had in this context in this state in the face of that example of if raised in litigation would have to provide a reasonable dangerous i don't care what other states think i think a little murder will be required under the compelling interest test no this court and carter recognize the state just simply says this you know actually there's nothing special about our prison and  show you some special circumstance but what we can show you is that prisons are in the business of making tradeoffs between security and other values they do that every single day and our states just thinks that the tradeoff should be more security oriented so we insist on a greater level of security then our p r institutions do and and are you saying that the statute prevents a state from doing that no i don't think that the statute of poses the least common denominator amongst sed state prison systems however i think there is some balance to the state's judgment that needs to be there are some limits in a state needs to provide a reasoned explanation in order to get deference to context but the question i was asking was how do you think this something that there is a role for deference habits and fit together with what the statute expressly liars i don't think there's any dissonance between the idea of strict scrutiny which is not a degree of proof required it is a question about whether you've identified a compelling interest and shown that what the the burden is the least restrictive means that can be shown by preponderance of the evidence and so when you're talking about deference in this context you're talking about deference to the predictive judgments of officials based on their experience and expertise based on the fact that they are in fact charged with protecting the public in ministering these prisons and so when they provide a reasoned explanation based on experience and expertise they can don't have to point to a specific example of a half inch beard in the past resulting in some shared justice alito is confusion on this point because all the things that you're talking about are things that we would never allow in the typical strict scrutiny context you know on this kind of well as long as they say something they don't really have to prove it and it just has to sound kind of reasonable and that's the very opposite of strict scrutiny generally well in this context and with statute doesn't say strict scrutiny it shows says that the state has to identify a compelling interest and show that the burden it is imposing is the least restrictive indeed it sounds like it similar but remember this court in in grutter in cutter has recognized that the application of strict what you might broadly label strict scrutiny depends on context in congress when they hadn't acted both refro understood that these two concepts could be administered together you think it's the same standard in both of those directions for the large part yes i want to carry out that because the language is completely the same yes but in real loop most of the language is simply the same the standard is the same but in the loop a real looper has this additional provision that requires that terms of the statute be broadly construed to the maximum extent possible to protect i think the analysis is different now has it could be litigated any of these claims could be litigated the state would then have the burden of coming forward to show that the restriction would in fact be at least restrictive  case law no one would doubt that a state could in fact prohibit a half inch beard under the prior constitutional standard but congress has set a higher bar and it encloses upon states the obligation to come forward to explain newson in a situation in which you would employ deference to the administrative judge might i think that's exactly right that there's going to be a pound a range of reasonable in this court's will find appropriate to defer to predict judgments by expert officials in various contexts in that now has a similar question but you know lots of religions including lots of religions of one have dietary codes of various kinds so suppose a lot of prisoners say here's my dietary code personal to me and all of that costs money and let's just stipulate that as prisoners prisons have to spend money on that they have less money to spend on things relating to internal security how is somebody supposed to think about those kinds of questions where it's just every time somebody makes a religious claim the cost to the institution goes up and the ability of the institution to deal with security issues goes down well maybe not necessarily always second certainly you could have cost going up it may not necessarily affect the but i'm security that horses are going you know they come out of someplace at some limit that that's true i mean we all operate under a real world with limited costs  recognized in cutter we don't do that so how do we do that well i think again it's going to depend if for instance factors that would be relevant is the context does the increased cost pressure just other types of interest in operating the prison that would have to to be a compelling state interest and you are asking is well it's balanced things let's be reasonable compelling state interest is not a reasonable is test at all it's not me your honor i think it's what the courts actually recogniz cutter the courtnall quote said that the act needs to be applied in an appropriately balanced way particular sensitivity security concerns and that accommodation must be measured so that it is not a right with a right other significant interest thank you counsel the current mr chief justice may please the court arkansas security objectives are undermined by the petitioners happened speared because he could use it to alter his appearance toward identification and conceal contraband in our maximum security that is not on the record i concede that that was not sufficiently addressed to a stand a summary judgment posture in this case that record testimony was just i agree with mr professor like ocular wasn't satisfactory let me get to what i mean  well there's two points in altered appearance one is identification within the present itself and i want to get to that in one second one as opposed to skate a scenario where you're looking for the right and made our testimony on that was was not engaging in the question i there's no record testimony regarding that so let me get to identification on what you really need record testimony on questions such as that if you claiming if he escapes he can shave off his half inch beard and thereby alter his appearance and the the response is well just take a photograph of him before he grows his half inch b why do you need evidence on that point it seems to me it's it's obvious what would prevent you from taking a photograph before he goes half inch beard which can then be distributed to police itself speaks in terms of maintaining the standard appearance throughout the period of incarceration minimizing opportunities for disguise let me explain a minute why this matters in our prisons unique environment and why we're different because it's a very important point here the testimony on the  record page one on one of the joint appendix was that we have a very different situation with barracks housing and maids going outside the fence in large groups of thirty to sixty per barracks unit every day it's a very high traffic maximum security facility where they come out of a large barracks holding thirty or sixty and mates go out and then come back and there's a lot of traffic there and in that environment rapid and accurate identification of the enemy by his face is on his  badge and the like but also general familiarity with the inmate who the guards are dealing with is very important that process and if a mistake is made an inmate could get into the barracks where he is not supposed to be and an assault could occur and these are separated by enemies and the like and that is very serious and our environment it was made on the record and it differentiates arkansas from every state mentioned by the petitioner and the united states and it but you have no example of that ever happening i have no example of a well let me say this in our brief on footnote thirteen and on page twenty six of the eighteen states amicus briefs there are examples there are no record there are no record exams for examples of what i've entered prison identification problems with them escaped you know in the prison some a bit of being used to thwart identification and you have that same concern with the prisoners who have a very short beard for medical reasons no and let me explain why there is confusion here as to what this so called medical beard is there is no exception and practice of a quality quantitative matter for america appearance it is a means of shaving exception in fact our policy changed to reflect our actual practice about a year ago what the what the practice is that when a doctor's order says a person has a dermatological condition or some other scarring or skin condition that needs a shave they use barber style clippers electric clippers without a guard and they're used directly on the skin and the result is a very clean shaven look not quite as close as using a tamper resistant safety razor that other  very clean shaven face but the clippers are kept in the barber facility and a couple of days more how long just that how long are the whiskers when that is done so so they may take barber called maybe twice a week so they'll have a clean shaven face and then go  a clipper shave and that's it that bring the second point out your honor is that we the policies rationale is follow doctor's orders and we think that is fundamentally of a different nature than a religious reason because  there is a clean shaven rule that's allowed some link to go to the next barber call a few days later you can still see the skin the entire time in that scenario and the petitioner wanted to bail him self of that accommodation we would let him do that what about the  a material difference there is as our professional judgment is that the sky is related component of a beard and shaving that beard is more profound than one in the head so you your point speaks to one of contraband and i agree as a matter of common sense and logic there and gravity component head that's different than a beard sure but at the risk is still there none the same and there is a a interest in regulating the contraband element but the head here doesn't propose pros the same disguise related problem as a beard why is that why is that so are you saying that somebody with or without a half inch beard that's a bigger difference than somebody who has longish hair versus the same person with a shaved head and our professional judgment is yes that's correct because you're looking at the center central features of a person's face their doll on their chin like and that's the means by which we identify each other and so that is a significant difference in our view and really the head hair policy compliments the facial identification policy because it's not allowed to get to a link that could obscure that here and that's that's the rationale for mr around lake characterizes your position as being essentially compelling interest and the least restrictive means is neither comports with logic or common sense i mean i think i think it sounds like we're on agreement on that and justice sotomayor asked what's a lower court decision would maybe lead the most guides i think  rather straightforward but apt analysis is in the couts case in the fourth circuit where judge tracks are drawn by justice o'connor and judge said sort of went through the initial obligation is to explain the reason and common sense why that approach furthers a compelling interest and the least restrictive means and once that happens deference attaches but that doesn't mean either that you win the case it just means you have substantial weight you're sort of a thumb on the scale so to speak and more evidence can come into play and you if you look at the written findings there is no such finding in fact the finding was to the contrary i believe it's on page one sixty seven of the joint appendix the magistrate judge says the testimony about small bits of dangerous contraband is indeed the most compelling in the entire case then if you go back and look at the verbal musings from the bench the judge sort of reflects a lay layman's view of well the idea of contraband and a half inch beard seems almost oscars and then he jumps down in the next paragraph the media paragraph after that and said well then i heard the testimony of experience how experience correction professionals and they may he changed my mind i mean it didn't say change your mind he used the word impressed how the word impresses one fifty five of the joint appendix so i think what you see here is a judge doing what judges ought to do which is come to court with their layman's understanding of how things work and then hearing this testimony and it is it is somewhat hard for me given what you just said to figure this out because there may be in my mind some situations with some prisoners where half inch beard one hide anything and with others that it will doesn't this law require you to consider the individual before you and to accommodate them in the least restrictive way so let's assume that what the magistrate judge meant which is what i assume you have two different read that it's preposterous to think this prisoner could hide something in his spirit but not per posterous to think that others might not be able to do so they assume my hypothetical right request of the individual and assume that the application of whatever rules you create can't have an exception as to bad individual on this testimony your honor you pointed out that the test beard you can't see the skin and i think that's a functional difference and we've got to think of how to administer a role where to the person at that level of granularity is just not function i mean my it yes but i don't know given the deference that was given here the question is was it applied to broadly what i'm getting at is this a court have to look at the individual requests and figure out whether it can be accommodated in the least restrict way yes i think it's fair to say that if the court actually did say it was preposterous another word of saying that defies common sense in this case in this case stacey i think that's right but i don't i don't think that's an accurate finding of what the describe in more detail it's like i obviously missed it in the record what is this barracks situation these are the rights so they do they go when they leave the comp so they're in a very situation they've got thirty to fifty or so in a  and there are four barracks on each side of a common roof they go out and get in a line and different shifts so to speak and they go out and they will go to chalo and they will do their business and they'll go out and work outside the prison and in fields and they will come back again and it's it's a very high traffic environment these unprotected fields there's guards they're watching on not just out working alone but they're not there's no presence there and they're up to up to the guard to keep up with them so what you have is an environment which on this record on page one of the joint appendix was we're not like california we're not like new york they have cell block housing and there is no instance in which the government or the petitioner has said challenge that has to maximum security facilities that's a very big difference in the nature of our institution runs and we'd deference means anything it means you don't have to copy the prison policies of other states who don't even have the similar security c california in new york and the undisputed testimony on this record at page one i want is they're different and that stands and disputed and your question is what about all the footnotes in the brief to this court if you look behind all of the sites that sources cited on those internet sites which that's what petitioner mostly uses and the government's uses internet sites and also some case law examples each one of those was referring to my minimum security institution they've not offered any institutions like ours as far as i can tell the only institutions that have something similar to ours have clean shaven rules but about the federal prison system i thought them will live throughout the prison system both the government and the petitioner cite a link to their regulation in their briefs and tha a minimum security status and let's want to prisoner goes out in the field and then wants to come back to the barracks of the prisoners wearing an id is that is that correct that's correct and does it say which barracks that the prisoner supposed to go to yes and what barracks relies on the idea in the face but also dinner familiarity with who's working with because that's sort of the but i mean that happens that general familiarity i'm having difficulty envisioning what you're the scenario that you're you're suggesting so prisoner is supposed to be in barracks a has a half inch beard as an id that says barracks a has that person's picture on it goes out in the field brings a razor with him shave while he's out there and shaves then he wants to come back and go into barracks b was going to get into barracks b if he has an i d that says barracks a now you say you're going to trade with another prisoner then you'll have a different picture on the id he's going to alter the they're going to alter the i d s also while they're out there in the fields now they they altered it they would alter their id i mean they they know what happens is you've got very fast recognition and if they favor each other at all and this happens now your honor i mean so in the shade would take place probably in the barracks in the morning but when they come mean prisoners are capable of doing a lot of mischief in prison as you understand i think and and that kind of thing happens even now when we have assaults in the wrong barracks because inmates are sort of getting their a good rehabilitative event by not having to go back into the prison for friday prayer because they might as well get used to an intolerant employer when they're out in the free world that won't pass muster under compelling interest anymore i mean that just that was the old standard and the interest has to be truly compelling on least restrictive means we think that interest grounded mostly in cost and hassle would have survived under the old  staffing ever so slight might say ok that that is required to pass least restrictive means that it wasn't in there but under the prior standard so i think even under a deferential approach to religion grounded in logic and common sense you'll still have more vigor under religious standard and cases will go the other way more often than than under the prior statement about this whole issue about cost in the statute two thousand c c three c it says this chapter may require a government to incur expenses in its own operations to avoid imposing the substantial burden our religious exercise yes or listen it's anticipating it is likely expect that's exactly right and so that's you know even within the lesser shifted means analysis there's a particular statutory command i think courts are going to have to manage that with reason be right we can't have each inmate has his own facility with ten guards around it there's going to have to be some limit on cost but i don't know that this case really implicates called so much of a i'm not sure what your position is i thought earlier that you had pretty much abandoned the concealment justification for the policy you still and  hammer on the head that's much longer well the testimony on the record was that it's common sense and you that longer hair is a better way to conceal contraband i think is a right one the question really is is a beard an unlikely place of the testimony here is not only could something fit in and a beard that correctional officers very likely will be somewhat reluctant to do a full search of the beard like they would with say head  hair there's no example not a single example in any state that allows beard policies for somebody did hide something in his beard i think that's mostly right ron i think there's an after day we had a knowing it was so there's no you have no such example then do you think it might fit within the language of that report which says that the fear of people hiding things in their beards is to use their language was a grossly exaggerated i mean forty two that people would hide something in their beards when in a country of a very high prison population not one example has ever been found of anybody hiding anything is beer here as far as you can tell and as far as  as for i do i have that right as far as i can tell but let me make a cabby out there that i think is important which is that just because we haven't found the example doesn't mean they aren't there in the courts no there are a lot of things we've never found that there are and i'll refrain from mention problem on television all of it weird programs from time to time but there probably aren't this is bright with with this scenario is these kind of things are buried in incident reports among thousands of other things in this court and in the foreign scales justice kennedy asked assistant to this lesser general i thought the evidence here of contraband what it was rather skimpy i was surprised to see that there weren't more of this and that the attorneys response was these things are buried in incident reports we can't find all of these examples it's the nature of prisons but take my newspaper articles and the court actually you know take note of that is confirming it's common sense intuition there and part three of its opinion and i think that's just not a problem of empiricism in that in the prison environment was far is searching  can be hidden in a half inch beard a tiny revolver it will fall out you know you know i suppose a possible alternative i think the concern there is there's no perfect way of searching and there's a lot of area there and you're going to have to really monitor to make sure they get all the spots but you really think that would be difficult to say here's a i don't think it would be that difficult i mean i'm not the president vironment i really wasn't raised on this record my clients might think that it is but based on the information i have i would agree that sounds like that would be something that could be done and i do think it's important to distinguish sort of the rule that that i would propose and that's in the couch case and that is what i think is very similar to what the government's offering here is really an effort to marry strict scrutiny with deference in a way that doesn't empiricism this court strict scrutiny jurisprudence had always demanded examples especially in the present context and i think that's important that we did be allowed to have prophylactic rules in well what about literature we have a rule that says racially inflammatory literature of a religious nature that incites violence isn't allowed in the prison and justice ginsburg and the footnotes in the cutter opinion and you know seem to think that of course that's a concern that prisons ought to be worried about that's not susceptible to any kind of empirical proof i don't think and as i understand my friend's understanding of the rule we're in a land of strict security re content based speech or struction analysis where prophylactics is to be condemned and we ought to really be using after the fact deterrent measures against maximum security inmates have already shown themselves not to comport with that view of of how to behave and i think that's particularly dangerous in the prison setting particularly in our prisons environment thank you ana thank you council press or like occupied minutes on the issue of the written following its magistrate says it's almost preposterous to believe you can hide anything in the spirit and then he immediately said but there's a larger principle here which is i have to defer to these people and the results were written findings are based on that mistaken level of difference he said three times i'm constrained by the few can skates the eight circuit precedent centrally applied the pre rupa constitutional rule the magistrate was bound by that he gave that level of deference and he made written findings apart from what he had actually seen on the issue of identification inside the prison prisoners can shave their heads shaved a moustache shave their medical beards they'll claim that's a significant problem the other forty three states do not appear to found this to be a significant problem is is as is a small and in manageable problem the on the question of the quarter inch medical beer policy is and they have not been able to justify their policy they do have to prove justice kagan and if the proof comes close they get deference if if they offer serious evidence they get deference but here they offered very limited conclusory testimony no examples in a situation where there should be plenty of examples and you can't administer a prison and maintain any kind of safety and security if you don't have some sense of where prisoners hide things they don't have to dig out the data from the files if prisoners were routinely hiding things in beards these two witnesses would have known that would have remembered it from the earlier rule in arkansas and it would be easy to get examples of that from i've had to deal with minimum security arkansas may be somewhat different in how it in the number of maximum security prisoners working outside in the fields but that does not make the half inch beard any more attractive a hiding place if i imagine if i'm out in the fields i'm trying to smuggle something back again i've still got lots of better places to smuggle it clean my shoes in my pockets and the one in my clothes and as mr current just agreed the hair on top of my head again there's just not a rational difference between wear on the head the hair is ok you made a statement against and mr like about how to think about deference in in the context of the statute and it's something that's  troubles me so i'm going to ask you to expand on that well and sam and just seems that a contradiction in terms so i want to understand how it's not a contradiction in terms of it there's obviously some you know we think the more informed and considered and well explained their decision the more deference it naturally deserves the more deference is due but they have to take some account of the prisoners religious needs have to take account of solutions have been found to work in other states if it's something so dangerous no one would ever try it like this occur pand them of course you wouldn't expect examples but here forty three states have tried it arkansas tried it for years  situation like that where there ought to be plenty of examples if there's a problem they ought to have to produce some of the samples so that the at the degree of deference that is due depends on the quality of their explanation the quality of their consideration of the issue and here there's there's no indication they ever considered the really just needs of the prisoners in the adoption of this rule that if they ever took a second look at it after removal was adopted and the testimony is very conclusory devoid of examples devoid of attention to othe the level of deference cannot be so great just in the gate the statutory standard have to administer difference within that standard not substitute difference for the standard statutory standard is still compelling interesting least restrictive means thank you thank you counsel in cases submitted