But that precedent and similar ones, Judge Bacharach wrote, were not clear enough to allow Mr. Lowe to sue prison officials for money. The officials were protected by qualified immunity, he wrote, which shielded them from suits over violations of constitutional rights that were not clearly established at the time of the conduct in question.
“The deprivation of outdoor exercise for two years and one month,” Judge Bacharach, “is not so obviously unlawful that a constitutional violation would be undebatable.”
In Colorado, for now, the issue is of only theoretical interest. The state ended the use of long-term solitary confinement last year. In 2016, the Colorado State Penitentiary lifted its ban on outdoor exercise for inmates held in isolation.
There are about 80,000 inmates in solitary confinement in the nation’s prisons. Most of them appear to have occasional opportunities to exercise outdoors, though the data are spotty and prison officials have a lot of discretion.
The Supreme Court is not a fan of lawsuits seeking money from state officials for constitutional violations. But Mr. Lowe’s appeal, along with a companion case, present the court with the opportunity to tell the nation what the Constitution requires even if it rules in favor of the prison officials on the ground that the law used to be unclear.
In a sign that the court might be interested in the cases, Lowe v. Raemisch, No. 17-1289, and Apodaca v. Raemisch, No. 17-1284, it ordered the officials to file responses to the plaintiffs’ petitions.
Justice Kennedy is nearing the end of a long judicial career, and he might think it fitting to return to an issue he considered just a few years after he first put on a robe.
“Underlying the Eighth Amendment,” he wrote in 1979, “is a fundamental premise that prisoners are not to be treated as less than human beings.”