DavidEBernstein at aol.com
DavidEBernstein at aol.com
Sun Jun 3 20:30:24 PDT 2007
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
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
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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