Gov. Jerry Brown has only one place he can go to stop the release of thousands of California prisoners -- the same venue that has now rejected his offer for a legal timeout.
And that would seem to raise the stakes mightily on what up until now has been a fairly blasé reaction to the prison problem under the state Capitol dome. The governor's own plan, among other hurdles, would require legislative approval with only a month left before adjournment for the year.
The rejection of an emergency stay by the U.S. Supreme Court wasn't explained by the six justices who voted for it -- a majority that included both Justice Anthony Kennedy and Chief Justice John Roberts. The only reaction came in a dense and disparaging dissent (PDF) from Justice Antonin Scalia.
"The state," he wrote, "provided evidence that it has made meaningful progress." But he then accused his fellow justices of not following through on the 2011 suggestion that such progress would translate into some wiggle room to lower the prison population to about 109,000 inmates -- "a sham," he called it.
The response from state officials: we're not giving up. Corrections secretary Jeffrey Beard promised an appeal to the high court even with today's rejection of extra time.
"The division [of justices] in this ruling is similar to the division when it came out two years ago," says Leslie Gielow Jacobs, a law professor at Pacific McGeorge School of Law. "So, it does seem unlikely that the case would be accepted by the Supreme Court to hear it all over again."
And even if the justices did accept the case, the clock is ticking. The shrinking of the prison population by more than 9,000 inmates is supposed to be completed by December 31. But prison officials said this past spring that the 'worst case scenarios' they were offering to federal judges could take months to implement. And they don't have a lot of months left.
The governor submitted his prisoner release proposal to the Legislature in June, where it was promptly declared a non-starter. With the nation's highest court now refusing to stop the clock on the order to release prisoners, will that approach to the issue change?
Brown has been taking some hits over his most sweeping attack on the prison population -- the 2011 realignment of more newly convicted felons to county jails and supervision. The specter of releasing thousands of prisoners could ratchet up that criticism, just months before what so far looks like a smooth sailing 2014 re-election campaign.
Legislators may also worry about what actions they're asked to take just months away from campaign season. Crime and punishment, even with the realignment criticism, hasn't been a huge political issue in the last few years. Could this change that?
The bottom line seems to be that an issue that has been largely legal and academic for the last few years... is now poised to be, much more than anything, intensely political.