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The Cruel and Unusual Justice Thomas

| June 19, 2013

Justice Originalism.

Justice Originalism.

The cruelties of the self-loathing, self-pitying Clarence Thomas were on display again this week when he provided the deciding vote that had the Supreme Court managing to turn the right to remain silent against the accused, and using that silence as evidence of incrimination.

Thomas will never miss a chance to stick it to defendants. This is the justice who has no problem executing the mentally ill: he was among the three dissenters voting for such executions in Atkins v. Virginia in 2002.

This is the justice who decided that prison guards at Louisiana’s Angola state prison—America’s version of the 19th century Congo under Belgian rule—kicking an inmate while he’s handcuffed and shackled, punching him in the mouth, eyes, chest and stomach while another guard held him in place, bruising his face, swelling his mouth and cracking his dental plate, all while a supervisor watched the beating and told the guards “not to have too much fun,” did not amount to cruel and unusual punishment under the Eighth Amendment. He was in a 7-2 minority on that one, joined only by Antonin Scalia, whose jurisprudence never travels far from Inquisition-vintage punishments. When the case was argued, even President George H.W. Bush and his deputy solicitor general at the time, John Roberts, now the chief justice, were on the inmate’s side. Not Thomas. Never Thomas. (Hudson v. McMillan, 1992.)

This is the justice who sounded virtually nostalgic when he joined a 7-2 majority that declared the three-drug lethal injection procedure typically used in executions neither cruel nor unusual. “The unanimous court,” he wrote, referring to an 1879 case, “had no difficulty concluding that death by firing squad did not” fall in the cruel and unusual category. So why should lethal injection? Never mind that the 1879 case involved Wallace Wilkerson, who bled for 27 minutes after the firing squad missed his heart, as witnesses and a doctor stood by in a Utah yard. Not cruel and unusual at all, at least not for fans of torture. (Baze v. Rees, 2008.)

This is the justice who had no problem providing the deciding vote—and the majority opinion, in a 5-4 case—in throwing out a $15 million award for civil rights violations in the false conviction of John Thompson, who spent 18 years on death row before his exoneration. The prosecution had intentionally failed to turn over evidence that would have exonerated him. Thomas excused the prosecution. Thompson lost his compensation (Conick v. Thompson, 2011).

So came Monday’s 5-4 vote in Salinas v. Texas.

Noah Feldman sums up Thomas’s devolution back to 1789: “Thomas’s opinion on what facts must be submitted to the jury derives from a series of opinions he has written over the past 15 years, all of which amount to a concerted historical attack on the way modern legislatures and judges handle criminal punishment. In the good old days, the English common law defined a limited set of felonies, and they all had the same punishment: death. Like the Islamic Shariah, the Jewish Halakha and many other early legal systems, the common law wasn’t so much bloodthirsty as designed to operate in an environment with little formal police enforcement. Capital punishment was counterbalanced by a low likelihood of detection — kind of like harsh sentences for insider trading.”

He concludes, along with some admiring words with Thomas’s fanatical adherence to his principles: “If criminal justice, or the rest of our constitutional system, were actually turned back 225 years or so, the results would be so unfamiliar as to seem bizarrely un-American. Originalism is valuable because it reminds us that there are certain core values that we as a people have preserved throughout our history — not because we should stop using zippers and go back to a world of buttons.”

The court has had its share of radioactive justices from Roger Taney to James McReynolds to the insufferable Felix Frankfurter. Thomas fits the tradition. He used to be the court’s most extremist justice. No longer. Samuel Alito now holds that title, though Alito uses it more cleverly, being less of a stickler for principle and more interested in positioning himself in ways that could influence the outcome of decisions. Imagine that. Thomas, looking more moderate than a colleague. Even ironies can be cruel and unusual.

–Pierre Tristam

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13 Responses for “The Cruel and Unusual Justice Thomas”

  1. A.S.F. says:

    This guy has always been a joke–a dangerous token and a disgusting joke. I remember the Anita Hill debacle. His wacko wife has cleaned up with her feral lobbying activities in Washington, D.C.. I wish there was some way to get rid of him. I wish someone with some guts would dig a little deeper into his and his lovely wife’s activities and bring them into full view, all at once, for everyone to see. it is unfortunate that the Supremes are, all too often, considered to be untouchable. I would vote to impeach Thomas in a nano-second!

    • Anita says:

      If you impeach Scalia, you’ll render Thomas null and void, thus killing two vultures with one stone.

      • Anita says:

        Actually, that should read: you’ll render Thomas null and void, since he’s already mute.

      • Pierre Tristam says:

        Scalia has been as ideological as they come, and some of his decisions show a great gift for fiction (load up your Heller) but ideology aside he’s been among the better justices the court has known, and certainly the sharpest (and wittiest, which counts for something). There’s been a couple of minor conflicts of interest. Duck hunting with Dick Cheney was not exactly kosher (but absolutely courageous, considering Cheney’s aim), but nowhere near the improprieties of a Brandeis or a Fortas advising FDR or Johnson on policy while sitting judges, and in Fortas’s case actually interfering with it (during the ’67 Arab-Israeli war for instance). Scalia has never done anything approaching an impeachable offense. A fetish for Medieval punishments unfortunately doesn’t count, being merely an expression of his waterboarded brand of Catholicism.

      • NortonSmitty says:

        I hear the Secret Service has contingency plans to prevent one shot from hitting Thomas in the back of the head while castrating Scalia. (Hi Mr. Snowden!)

  2. Marty says:

    OK..lets just GET RID of the supreme court and the justices…ALL of them !!! And while we are at it, lets just GET RID of Prison’s and Police. Who needs them ? We as a society are so intelligent, peaceful, and trustworthy we don’t need any judges or police to control society……..Yea, that would work out just fine !!

  3. Prescient33 says:

    Anyone who knows the Justice, as I have since he was the Chairman of the EEOC, who has read his autobiography, and, more importantly, who has taken the time to have read his decisions in the context of the cases decided, would recognize that he is far from a joke, but that in future years he will be studied and cited as one of the preeminent justices ever to have served on the Supreme Court. He has earned the admiration of his colleagues on both sides of the political spectrum, and deservedly so. It is the asinine shallowness of his detractors that is the joke, since they can not attack him with reasoned rhetoric, only with what sounds like schoolyard prattle. And to try to abase him with attacks on his spouse is so typical of the leftist smear machine as to grow wearisome. Where were these critics during the reign of Tom Daschle as Majority leader of the Senate when his beauty queen wife earned millions lobbying for an industry that was the subject of the laws being passed by her husband’s legislative body, to name just one? The hypocrisy of the Left wing is beyond description.
    History will judge Justice Thomas. It is respectfully submitted his life and work will withstand the test of time, and his jurisprudence will be recognized for what it is. One may disagree with some of his decisions, but not with the reasoning that led to his conclusions.

  4. Merrill Shapiro says:

    Let us not forget that Clarence Thomas was the only Supreme Court Justice to dissent from an 8 to 1 decision, maintain that it is proper for school authorities to strip search a 12 year old girl without consent or parental knowledge, in a search for a “contraband” aspirin!
    Perhaps the most important lesson here is that Presidential elections matter because of the justices who may receive lifetime appointments.

  5. Prescient33 says:

    To supplement my earlier remark, check out this article in Reason:

  6. Diego Miller says:

    We would have been better served if Clarence Clemons had taken the oath.

  7. Geezer says:

    Samuel L. Jackson would have made a far superior Justice.
    Justice L Jackson….. I can just see him now.

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