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Clarence Thomas, Silent but Sure—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published on newyorktimes.com on March 11, 2010.

Clarence Thomas, Silent but Sure
By Linda Greenhouse ’78 MSL

Let’s hear it for Justice Clarence Thomas.

Notice that I did not say let’s hear from Justice Thomas. February 22 was the fourth anniversary of the last time Justice Thomas asked a question during an argument. His silent presence on the bench has evolved into a weirdly compelling example of performance art.

But my point is not to scold him for his obvious disdain of the ritual of appellate argument, an exercise that all the other justices appear to find if not always enlightening, at least worth the effort. (The newest justice, Sonia Sotomayor, has thrown herself into the arguments with gusto, asking pertinent questions with penetrating follow-up). Rather, I want to call attention to the impressive consistency of the views that he actually expresses in his written opinions — consistency being so unusual a commodity these days that it shouldn’t go unremarked on those rare occasions when an individual holding high public office displays it.

The subject is prison, specifically the meaning of the Eighth Amendment’s prohibition against “cruel and unusual punishment.” In February 1992, the Supreme Court ruled in Hudson v. McMillian that a prisoner need not have suffered a “significant injury” in order to pursue a lawsuit against prison officials for the use of excessive force. Keith Hudson, the Louisiana inmate who brought that case, had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment.

Mr. Hudson’s appeal to the Supreme Court was supported by the George H.W. Bush administration, and John G. Roberts Jr., then a deputy solicitor general, argued on the inmate’s behalf. In an opinion by Justice Sandra Day O’Connor, the court reinstated the lawsuit. What mattered in such a situation, the court held, was not the extent of the injury, but the nature of the force that was applied. “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated,” Justice O’Connor wrote.

Justice Thomas dissented. He had been on the court for four months. During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.

In his dissenting opinion in the Hudson case — which Justice Antonin Scalia joined, making the vote 7 to 2 — the new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”

Now let’s move ahead almost exactly 18 years, to Feb. 22 of this year — which happened to be the fourth anniversary of the Clarence Thomas Silence. The court had another excessive-force case, a prisoner’s appeal that was so clearly meritorious that the justices ruled in the inmate’s favor without bothering to call for briefs or hear argument. The prisoner, Jamey L. Wilkins, an inmate in a state prison in North Carolina, claimed that a guard had responded to his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off.

The inmate’s Eighth Amendment lawsuit had been dismissed by a federal district judge in Charlotte, and that decision was affirmed in an unpublished one-paragraph opinion by the United States Court of Appeals for the Fourth Circuit. Mr. Wilkins “has not established that the injuries he suffered were more than de minimis,” the district judge, Graham C. Mullen, explained in dismissing the suit. (Sounding more like an insurance executive than a member of the judiciary, Judge Mullen added that “several of the injuries he lists were pre-existing conditions.”)

The lower courts’ analysis obviously flew in the face of the Hudson v. McMillian precedent, which decisively rejected the same de minimis standard. “The Fourth Circuit has strayed from the clear holding of this court in Hudson,” the Supreme Court said in its unsigned opinion, adding: “An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.”

The vote was 9 to 0, but it was not a happy 9 to 0. Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. “I continue to believe that Hudson was wrongly decided,” he said. But noting that “no party to this case asks us to overrule Hudson,” he said that he was going along with the majority because as long as the precedent was on the books, it clearly required the result the Supreme Court had reached.

Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.

Justice Thomas is not likely to be able to replicate his Second Amendment success with the Eighth Amendment. Guns have a constituency that prison beatings do not, at least publicly, and evidently not on the Supreme Court. (It is quite likely that Chief Justice Roberts was the author of the unsigned opinion in the Wilkins case.) Justice Thomas has been trying and failing repeatedly to get someone to bring the court a vehicle for revisiting its prisoners’-rights jurisprudence. Dissenting from a 2002 decision, Hope v. Pelzer, he objected to reinstating a lawsuit brought by an Alabama inmate who had been handcuffed to a hitching post and left to stand shirtless in the sun for seven hours without water or bathroom breaks. “I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case,” Justice Thomas wrote hopefully.

No takers yet. Of course, as the Citizens United decision earlier this year demonstrated in overturning two campaign-finance precedents that the parties had not directly challenged, the court always has the option of simply helping itself.

But when it comes to the Eighth Amendment, it could be a long wait. Nonetheless it is comforting to know that in this uncertain world there is some certainty after all. Justice Thomas will be ready.