Yesterday, the governor’s office officially announced that the state will be filing an appeal of the federal court ruling demanding the release of 40K+ prisoners.

Gov. Arnold Schwarzenegger wants to file an appeal with the U.S. Supreme Court of a federal order to reduce the state’s prison population by more than 40,000 inmates over the next two years, his office announced Tuesday.

A federal three-judge panel last month ordered California officials to reduce the state’s prison population because overcrowding has led to unconstitutional levels of care. The order required the state to present a reduction plan by Sept. 18.

Schwarzenegger on Tuesday asked the panel to delay that order, a procedural move likely to be rejected. If that happens, the governor plans to file a similar request Friday with the Supreme Court. Schwarzenegger, who is being represented by Attorney General Jerry Brown and outside counsel, also will notify the three-judge panel Thursday that he is seeking an appeal with the Supreme Court. (CapAlert])

Once the stay of the previous order is rejected, the ball will eventually wind up in the Supreme Court’s hands. Now, to be clear, this is something of a stink bomb. You have two competing stink bombs, come to think of it. First, you have the fact that the State of California doesn’t really seem to be addressing the situation, so why would the Supreme Court want to waste its political capital on that mess. The prison system is toxic, and once you start mucking about in that sludge, you end up with a bunch of it on you.

On the other hand, this is a rather large order from the federal courts on to the state. There are questions of what the 8th Amendment really means, how far federalism goes, and whether we want our courts to be running prisons.  These are very serious issues, but the fact is that the issue isn’t likely to repeat itself. California is by no means alone in going too far on ToughOnCrime, but it is alone in the inattention paid to the system and the repeated neglect.  Only in our useless structure could this have gotten that bad.

And so, the question is whether the Supreme Court really wants to take this on. On one level because of the seriousness of the claims, it is hard to image the Supremes not taking it. However, it sure is a mess that you’d like to avoid.  But the question is whether there are 4 votes to hear the case, and that is still an outstanding question.