Page:United States Reports 502 OCT. TERM 1991.pdf/555

 502us2$26J 01-22-99 08:32:58 PAGES OPINPGT

Cite as: 502 U. S. 367 (1992)

397

O’Connor, J., concurring in judgment

simply too small. Someone has to suffer, and it is not likely to be the government officials responsible for underestimating the inmate population and delaying the construction of the jail. Instead, it is likely to be either the inmates of Suffolk County, who will be double celled in an institution designed for single celling; the inmates in counties not yet subject to court supervision, who will be double celled with the inmates transferred from Suffolk County; or members of the public, who may be the victims of crimes committed by the inmates the county is forced to release in order to comply with the consent decree. The District Court has an extraordinarily difficult decision to make. We should not be inclined to second-guess the court’s sound judgment in deciding who will bear this burden. III The Court’s opinion today removes what I see as the three barriers the District Court erroneously placed in its own path. Ante, at 379–380 (distinguishing Swift); ante, at 386– 387 (explaining that the court applied an impossibly strict version of the petitioners’ proposed “flexible standard”); ante, at 392–393 (permitting the court to consider the petitioners’ fiscal constraints). But what the Court removes with one hand, it replaces with the other. Portions of the Court’s opinion might be read to place new constraints on the District Court’s discretion that are, in my view, just as misplaced as the ones with which the District Court fettered itself the first time. Most significantly, the Court observes that the District Court recognized single celling as “ ‘the most important element’ ” of the decree. Ante, at 382 (quoting 734 F. Supp., at 565). But the Court decides that “this was not an adequate basis for denying the requested modification.” Ante, at 382. This conclusion is unsupported by any authority. Instead, the Court offers its own reasoning: “If modification of one term of a consent decree defeats the purpose of the decree,