The Egregiously Flawed Logic of Justice Clarence Thomas

From The LA Times

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eporting from Washington - According to Supreme Court Justice Clarence Thomas, a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form -- but suffered neither serious nor permanent harm -- has no claim that his constitutional rights were violated.

Thomas objected when the high court, in a little-noted recent opinion, said this unprovoked and malicious assault by a North Carolina prison guard amounted to cruel and unusual punishment.

The court's decision came a few days after Thomas' now-famous former law clerk John C. Yoo was charged with flawed reasoning, but not professional misconduct, as a Justice Department lawyer when he applied much the same view toward the treatment of Al Qaeda prisoners.

In the so-called torture memos in 2002, Yoo reasoned that subjecting prisoners to simulated drowning or "stress positions" in cold cells was not illegal torture because it did not cause the intense pain of a serious injury, equivalent to "death or organ failure."

Thomas' consistent record of dismissing claims of prison brutality, most of them joined by Justice Antonin Scalia, shows that Yoo's view of torture was not that of a rogue lawyer. Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the "evolving standards of decency."





Over two decades, Thomas and Scalia have repeatedly dissented when the court ruled for prisoners who alleged they were subjected to cruelty. They include an inmate who was handcuffed to a "hitching post" and forced to stand shirtless for seven hours in the hot summer sun of Alabama. Another involved an inmate from Louisiana who was repeatedly punched in the mouth by a guard.

According to Thomas, this harsh treatment did not qualify as cruel and unusual punishment. "Judges -- not jailers -- impose punishment," he wrote.

The two justices explained that the word "punishment" as it was used in the English Bill of Rights in 1689 referred to judges imposing punishment for a crime. Prison guards do not impose "punishment" even if they mete out cruelty, they said.

Scalia raised eyebrows when he repeated this view on the CBS TV program "60 Minutes." When asked about torture and cruelty toward prisoners, he discounted the possibility. "Has anyone ever referred to torture as punishment? I don't think so," Scalia said. "What's he punishing you for? He's trying to extract" information, he said.

Yoo took a similar approach in his 2002 memo. He said a CIA interrogator could not violate the law against using torture if his "specific intent" was to obtain information rather than to inflict pain.

This is one area of law where Thomas and Scalia are not in sync with the court's other conservatives.

When he was a young Justice Department lawyer, Chief Justice John G. Roberts Jr. argued on behalf of Keith Hudson, the Louisiana inmate who had been punched in the mouth and kicked by a prison guard. A supervisor stood by and told the officers "not to have too much fun." The punches left Hudson with a swollen face, loosened teeth and a cracked dental plate. Roberts argued in 1991 that this unprovoked beating was cruel and unusual punishment, and the high court agreed in a 7-2 decision in Hudson vs. McMillian.

Thomas and Scalia dissented and said Hudson did not have a "serious injury." Justice Harry A. Blackmun took them to task for this view. If adopted, it would "place various kinds of state-sponsored torture and abuse entirely beyond the pale of the Constitution," Blackmun wrote. As examples, he cited "whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to heat and cold, or forcibly injecting them with psychosis-inducing drugs."

The same issue of prison cruelty arose two weeks ago in the case from North Carolina. In a 7-2 decision, with Roberts in the majority, the court revived a suit from Jamey Wilkins, who had filed a handwritten petition to the justices. He had been punched and kicked, but a judge threw out his claim without a hearing because he did not show he had suffered a serious or permanent injury.

The Supreme Court reversed this decision and repeated its view that the use of "excessive physical force" is cruel and unusual punishment if it is malicious and unprovoked.

"I continue to believe Hudson was wrongly decided," Thomas said.♦

david.savage@latimes.com


Copyright © 2010, The Los Angeles Times

Supreme Court's Latest Worst Ruling Ever

Fire The Bush Five

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nce again SCOTUS has utterly disgraced itself!

The first time, based on no precedent whatsoever, and no guidance from the US Constitution, they interfered in the 2000 national election and selected Bush for office when he so blatantly trailed by 500,000 votes.

And now, this ruling.

The first time, by anybody's lights, there should have been HELL TO PAY, for those SC Justices who were responsible for that un-American and un-Constitutional betrayal.

But there was nothing! Americans said "Oh, gosh, oh golly. They know more than we do." (This is before Roberts and Alito, who are Bush/Cheney boot lickers. Especially Alito. Clarence is just a dirty joke who thinks whatever Scalia tells him to.)

But this is the end of the line for these creeps; and I use the word creeps advisedly. All along, in decision after decision, they have been so obviously in the hip pocket of corporations and all we, the public, have done is try to keep our heads down and hope that the Supreme Court of the United States will occasionally throw us a tiny crumb of true justice.

Consider this short list of egregious decisions:

· It is legal for a vendor to sell a product which does not work but illegal for a buyer to purchase a product with a check that does not work.

· During a corporate bankruptcy, the company's assets are distributed first to other companies and last, if anything remains, to employees and even people who have obtained judgments from courts for company wrongdoing.

· If a homebuyer who has paid regularly on his mortgage for 20 and even more years, who has paid the property taxes and the property's insurance, is forced to default for no fault of his own, such as a death, serious illness, or economic collapse, the mortgage holder gets to keep all the money and gets the house too, transferring the risk that investors are supposed to bear entirely to the buyer.

· Entire industries can uniformly require consumers to accept contracts that require them to relinquish their legal and even Constitutional rights.

· And those industries can also uniformly require consumers to accept contracts that the companies can change in any way at any time for any reason without gaining the consent of the consumer. Has a consumer ever had such a right?

· Companies can collect personal information on people without their consent yet are allowed to keep company secrets even those which hide wrongdoing, as when a civil case is settled and the company involved is allowed to not admit to any wrongdoing and the court seals the detailed record.


Now, the five, Roberts, Alito, Scalia, Kennedy, Thomas, have come out of the closet, and shown themselves to be the Fascists we had hoped they would not be. Surely Supreme Court Justices would not be, common as dirt, Fascists! After all, only Redneck skinhead White Supremacists, who are truly Trailer Trash are Hitler Fascists.



And coming up on their agenda is Gay Marriage! Anybody want to guess the outcome of that issue in a five to four ruling: LOL



Here is a comment from Common Dreams:

How symbolic and hopefully prescient a warning it could be that a Mr. Brown, wearing a shirt, came to Washington on the same day that 'our' supreme court made a ruling which will surely allow ‘brown shirts’ to come to power.

One can not overstate the assault on democracy that has been launched in this pre-planned attack that will "live in infamy" from the ruling-elite's Global corporate/financial/militarist Empire ---- which until now has been only guilefully controlling 'our' country by hiding behind the facade of its two-party 'Vichy' sham of democracy(aided by much of the equally 'Vichy' corporatist MSM).

Yes, there are significant differences between the events in Germany of the 1930’s and America today:

1. The evolving Empire in Germany was nationalist in scope, though global in appetite and claims (“Thousand Year Reich”), while the evolving Empire, only currently headquartered here, is overtly global in scope from the get go (since Empire is a pathology of economics first and politics only second, and must be global if planned by any but a mad-man). This economic primacy reflects Sheldon Wolin’s critique of modern Empire toward ‘inverted fascism’, where economic power is senior partner in the merger of corporate and state.

2. The fast evolving Empire HQ in America is following a far more modern, sophisticated, long-term and guileful path than a Blitzkrieg and occupation of another country (competing national empire) with a crude first-generation, one-party ‘Vichy’ thin-veil of disguise. The Empire is also “Friendly Fascism” (Bertram Gross), so far --- although only in the U.S. However, Hannah Arendt’s prescient truth about empire must be taken very serious now, “Empire abroad (always) entails tyranny at home”.

3. Naturally, given the superior long term planning and non-human corporatist nature of this modern beast, there are many structural differences in the political manipulations, modern ‘shock doctrine’ pseudo-events, and infinitely more polished (softer) propaganda techniques that have been employed in the current global Empire take-over than were common to the Nazi path to power. No single human Chancellor was overtly appointed. There was no Reichstag fire was used (although some wonder and research 9/11). The rein of Gleichschaltung, and other extra-judicial rulings have not so obviously been applied, despite ‘signing statements’ few overt actions were needed.

4. There’s possibly a bit more time (and willingness) for the U.S. citizens (and a Global People’s Movement) to confront this Global corporatist Empire --- as I wrote before the supreme court ruling:

“We are not quite yet in a situation like those trapped in Belzec, Majdanek, Sobibor, Treblinka, Dachau, and Auschwitz-Birkenau, where the only choice was between the "least worst" of the Nazis or their non-German guards.

However, we do not have the luxury that any formerly comfortable population might have enjoyed, of depending on their robust civil freedoms in a stable Republic, calling on their normal financial resources, and support of democracy in a Republic sliding down-hill fast on a slippery slope. The surprise can come quicker than the population of such a country senses, as it did in the 1930’s in Germany --- until it is too late --- and today, there is no boat to the freedom and safety of a by-gone America that even one as smart as Einstein can take.

Everyone in America needs to put all their best efforts, financial resources, and the "good will of men" (as Kennedy said during the Cuban Missile Crisis, that caught even him by a surprise of corporate/financial/militarist Empire) to the task of saving democracy and our 'shared' world from Global Empire. It is only through the solidarity of a Global People's Movement to confront Global Empire that we can mutually survive the coming Holocaust being planned by this Global Empire.

As was presciently and poetically said by Martin Neimoller:

“First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out.”

Remember this, like it was itched by a laser in your brain:

Today, those freely speaking of liberalism in America are already gone ---
Those who speak in America of the kind of sustainable ‘social democracy’ that all of Europe and Japan adopted after their Empire experience of WWII are gone ---
Those who dare to openly call for socialism are gone --- and prevented from even using that nasty word in their Senate title are silenced.
The unions have been decimated without a whisper of resistance.
The blacks, and immigrants, and poor, and working poor, and now even the supposed American invented ‘middle-class’ are disenfranchised without a whimper.
Then they will come for you --- and your choice now (but NOT THEN) will only be, “Are you for democracy or EMPIRE” --- so make your choice for inclusiveness and democracy smartly and strongly, or accept your fate to Global Empire foolishly.”

Alan MacDonald
Sanford, Maine

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So every single American who can still think, needs to contact their Congressmen, pronto, and insist that Congress introduce legislation to invalidate the SCOTUS, forevermore.

Just toss them out on their asses! All five.

When a limb of your body becomes this corrupt, sometimes you have to cut it off.

And because "The Robert's Gang of Five" failed so monumentally in their job as the court of last resort, the place of protection for the little guy, these jerks should be sent to jail without trial. If not, then shot by a firing squad for treason.

Or, as Senator Alan Grayson suggests, go to http://savedemocracy.net and join with Americans who choose not become slaves to corporations.

Come on,Obama! You need to step up and remove all five from office. Then in one fell swoop, replace them all with a Rainbow Coalition of Justices. Then and only then could we get real Justice and real Democracy.♦