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Misrepresenting Justice Thomas

There have been several stories in newspapers lately focusing on Justice Clarence Thomas.  Unfortunately, these stories have invariably been skewed so as to give the reader a distorted view of Justice Thomas's jurisprudence.

The most recent installment is this article by David Savage in Saturday's Los Angeles Times.  He brings up the old Hudson v. McMillian controversy from 1992.  Justice Thomas's dissent in this case is among the most misrepresented opinions in the modern history of the Court.
The question was whether a prisoner had an Eighth Amendment claim against a prison guard for a beating.  Justice Thomas's opinion was that the Eighth Amendment is addressed to sentencing and not to acts by guards unauthorized by the sentence.  That opinion is entirely in accord with the historical understanding of that amendment.  He most certainly did not say that beatings by prison guards were legal or that prisoners had no redress.  He said that the prohibition and the remedy came from other sources of law, not the Eighth Amendment.

That critically important point is absent from the L.A. Times story.  Instead, it ends the Hudson discussion with the statement, "Thomas' approach would permit the torturing of prisoners, Justice Harry Blackmun said."  That may or may not be an apt paraphrase of Justice Blackmun's overheated opinion, but it is surely wrong in its assessment of Justice Thomas's opinion.  His approach most emphatically would not permit the torturing of prisoners.  Here is what he actually wrote:

Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt.  But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation. To reject the notion that the infliction of concededly "minor" injuries can be considered either "cruel" or "unusual" punishment (much less cruel and unusual punishment) is not to say that it amounts to acceptable conduct. Rather, it is to recognize that primary responsibility for preventing and punishing such conduct rests not with the Federal Constitution but with the laws and regulations of the various States.

Petitioner apparently could have, but did not, seek redress for his injuries under state law.  Respondents concede that if available state remedies were not constitutionally adequate, petitioner would have a claim under the Due Process Clause of the Fourteenth Amendment.  [Citations.]  I agree with respondents that this is the appropriate, and appropriately limited, federal constitutional inquiry in this case.
The dispute is not over the existence of a right or the existence of a remedy, but only over which part of the law provides one.  Would anyone who had not read the opinion get that from the L.A. Times story?  I certainly wouldn't have gotten if it I didn't already know it.

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