Supreme Court justices Clarence Thomas and Antonin Scalia are ok with savage prison beatings

At the New York Times, Linda Greenhouse notes that Clarence Thomas is OK with savage treatment of prisoners at the hands of prison officials — saying teeth-loosening beatings don’t violate the Constitution’s prohibition on “cruel and unusual punishment” if a judge didn’t formally sentence the inmate to teeth-loosening savage beatings. It’s a stance that goes back to Thomas’ early years on the court:

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.”

No surprise that Scalia joined Thomas in this opinion. Scalia has maintained in public interviews that the Constitution prohibits torturing people convicted of crimes — but not people suspected of crimes. After all, it’s only “punishment” if if you’ve been convicted!

The weirdness is that  these views even conform to the plain words of the Eighth Amendment that Thomas and Scalia claim to hew so closely to:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Notice that the prohibition against “cruel and unusual punishments” is not limited by the text to what judges do. A reasonable reading of the amendment is that the state is prohibited from inflicting such punishments, period.

The irony is that Thomas and Scalia are celebrated by small-government conservatives even though they apparently believe that government has the right and power to freely abuse your body — so long, apparently, as it does so off the record.

We’re apparently headed for another Supreme Court opening soon, and it’s possible we’ll hear — again — about President Obama’s much-derided (by conservatives) love of “empathy” in his court nominees. But Thomas and Scalia are Exhibits A and B in the case for empathy. Their version of the law and its requirements is so abstract — so confined to what’s on paper instead of the real-life implications for people’s lives — that it produces absurd results. If a prison sentence is a de facto sentence of being beaten and savaged at the hands of the state, that doesn’t matter to Scalia and Thomas.

The law sometimes produces inconvenient or unpleasant results; the law in the hands of those two justices, though, produces something Kafkaesque and evil.