"Explaining" justices

[DavidEBernstein at aol.com]

Thomas doesn't believe that the 8th Amendment was meant to reach things  
other than judicially imposed penalties.  This is rather obvious from the  
opinion, such as when he writes that the Court had previously "cut the  Eighth 
Amendment loose from its historical moorings and applied it to a broad  range of 
prison deprivations."  Yet precedent held that it does  apply.  So he tried to 
limit prior precedents to their facts.  It's  wholly unremarkable, is it not, 
for Justice to construe prior precedents  narrowly when he thinks such 
precedents were mistaken, and to find a way to  interpret the facts of those precedents 
to not apply to the facts at  hand? 
 
And going back to my original point, Scalia holds exactly the same view on  
this as Thomas, indeed joined Thomas's opinion, and, as I recall wrote  
previous dissents before Thomas joined the Court along the same lines.  Why  doesn't 
anyone wonder how the son of poor Italian immigrants, whose relatives (I  
assume) lived under the yoke of fascism, could express such a callous disregard  
for the wanton and cruel behavior of prison authorities?  Put Scalia's name  on 
Thomas's dissent, and it would elicit barely a yawn.
 
In short, when Scalia writes his opinions, it's seen as a reflection of an  
underlying judicial philosophy.  When Thomas writes similar  opinions, it's 
asserted that there must be some deep psychological  reason for it.  I'm not 
seeing much of a reason for this double-standard,  beyond their respective skin 
color.
 
In a message dated 6/4/2007 12:12:46 AM Eastern Daylight Time,  
marty.lederman at comcast.net writes:

Given  all that -- and in light of the facts that Justice Thomas could not 
bring  himself to repeat -- what possible explanation is there for Thomas's  
dissent?


 



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