"Explaining" justices

[DavidEBernstein at aol.com]

Of course, Thomas is the least likely of all Justices to adhere to  precedent 
as a general matter.  
 
I hadn't read Hudson since 1992.  I just looked at the dissent.   According 
to Thomas, "The magistrate who found the facts in this case emphasized  that 
petitioner's injuries were 'minor.' App. 26, 28. The three judges of the  Fifth 
Circuit who heard the case on  appeal did not disturb that assessment, and it 
has not been challenged  here. The sole issue in this case, as it comes to us, 
is a legal one: must a  prisoner who claims to have been subjected to "cruel 
and unusual punishment"  establish at a minimum that he has suffered a 
significant injury?"
 
Contrary to my own recollection, no doubt influenced by  accounts/critiques 
such as Cohen's in the Times, Thomas did not even  say that the 8th Amendment 
doesn't apply to treatment of prisoners, but rather  that "Because I conclude 
that, under our precedents, a prisoner seeking to  establish that he has been 
subjected to "cruel and unusual punishment" must  always show that he has 
suffered a serious injury, I would affirm the judgment  of the Fifth Circuit."
 
He also added, "In my view, a use of force that causes only insignificant  
harm to a prisoner may be immoral, it may be tortious, it may be criminal, and  
it may even be remediable under other provisions of the Federal Constitution,  
but it is not cruel and unusual punishment.' In concluding to the contrary, 
the  Court today goes far beyond our precedents."
 
I may have missed a sentence or two, but I didn't notice Thomas describe  the 
violence at all, rather he just argued that the relevant constitutional  
standard is whether the injury resulting from the violence was minor or serious,  
an issue he argued was resolved by the lower courts.  Thomas may very well  be 
wrong in that conclusion, but taking his perspective, what would it have  
added to the legal argument to recount the specifics?  Does being  a Justice 
require one to wear one's heart on one's sleeve, as in Blackmun's  embarassing 
Deshaney opinion?  
 
Anyway, still not sure why we need a psychological explanation for what  
strikes me as a rather routine opinion, mistaken or not. 
 
In a message dated 6/3/2007 11:06:15 PM Eastern Daylight Time,  
SLevinson at law.utexas.edu writes:

For the record, I agree with David that  "abhorrent and immoral" behavior by 
the state is not necessarily  unconstitutional.  As Larry Sager and Chris 
Eisgruber argued in the book  on Constitutional Stupidities, Constitutional 
Tragedies that Bill Eskridge and  I co-edited some years ago, one can certainly 
believe that a given war that  the US is conducting meets both of those terms, but 
that does not equal  "unconstitutionality."  Had the prison cases been cases 
of first  impression, perhaps we could all have an argument about whether the  
Constitution should be "extended" to cover prison conditions.  But as  Marty 
points out, the cases were far from being "unprecedented," and what  repelled 
most people about Thomas's dissent in Hudson was the seeming  callousness of 
the description of the violence visited, without justification,  upon the 
plaintiff, criminal thought he may have been.  

 



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