Bench Memos

Perpetuating an Ugly Myth

Earlier this week, NPR’s Nina Totenberg marked Justice Thomas’s 20th anniversary on the Court with a piece that examined his influence and that included comments from various folks, including yours truly. On a topic like this, it’s not surprising that there is a lot in the piece that is contestable, and I see little point here in offering my own tit-for-tat, but I would like to highlight that the piece unfortunately perpetuates the false myth about Justice Thomas’s dissent from the Court’s Eighth Amendment ruling in Hudson v. McMillian (1992). Here, in broader context, is what Totenberg has to say about the dissent:

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.”

The juxtaposition of the last two sentences gives the reader the impression that Thomas offered his own view that the harm to the prisoner was insignificant (and, as I’ve spelled out, the New York Times asserted exactly that in its vicious editorial on Hudson titled “The Youngest, Cruelest Justice”). But that’s patently false, as the opening sentences of his dissent make clear (emphasis added and citations omitted):

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.


The magistrate who found the facts in this case emphasized that petitioner’s injuries were “minor.” The three judges of the Fifth Circuit who heard the case on appeal did not disturb that assessment, and it has not been challenged here. The sole issue in this case, as it comes to us, is a legal one: must a prisoner who claims to have been subjected to “cruel and unusual punishment” establish at a minimum that he has suffered a significant injury?

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