Only Liberal Cliches Considered

Earlier this week on NPR's "All Things Considered," Nina Totenberg rehashed some of the same talking points and cliches that have been around ever since Justice Clarence Thomas was confirmed for a seat on the Supreme Court in 1991.  One of Totenberg's more egregious claims involve Justice Thomas's dissent in Hudson v. McMillian.  She parrots the argument of Linda Greenhouse who, a day after the ruling, wrote a front page article in the New York Times titled "The Youngest, Cruelest Justice" that was highly critical of Thomas's dissent.  Here is Totenberg:

TOTENBERG: Thomas, the second African-American appointed to the court, has proved to be the ideological opposite of the man he replaced, Thurgood Marshall, the first African-American. A stark example of their differences is in cases involving prisoners beaten or denied essential medical care.

Marshall wrote key decisions declaring such treatment a violation of the Constitution's ban on cruel and unusual punishment. At his confirmation hearing, Thomas seemed to agree, noting that every day as an appeals court judge, he looked out the window at the federal courthouse to see busload after busload of criminal defendants being brought to court.

Justice CLARENCE THOMAS: And I say to myself almost every day, but for the grace of God, there go I. So I can walk in their shoes and I could bring something different to the court.

TOTENBERG: Two months later, Thomas, now a Supreme Court justice, dissented from a Supreme Court opinion upholding an $800 damage award to a prisoner who was beaten so severely by prison guards that his teeth and dental plate were broken. Thomas, joined only by Scalia, said that quote, "a use of force which causes only insignificant harm to a prisoner is not cruel and unusual punishment."

At NRO Bench Memos, Ed Whelan notes that the injuries sustained by the prisoner were not in the purview of the case because even the lower court had concluded that the injuries were minor.  This fact, which evidently escaped the notice of both Greenhouse and Totenberg, is noted in the opening sentences of Thomas's dissent:

We granted certiorari in this case “limited to the following question,” which we formulated for the parties:

“Did the Fifth Circuit apply the correct legal test when determining that petitioner’s claim that his Eighth Amendment rights under the Cruel and Unusual Punishment Clause were not violated as a result of a single incident of force by respondents which did not cause a significant injury?”

Guided by what it considers “the evolving standards of decency that mark the progress of a maturing society,” the Court today answers that question in the negative. I would answer it in the affirmative, and would therefore affirm the judgment of the Fifth Circuit. I respectfully dissent.

Once again:  The injuries sustained by the prisoner were never under review by the Supreme Court.

For a good essay on Justice Thomas, try this one by Ralph Rossum, Salvatori Professor of American Constitutionalism at Claremont McKenna College.