In his majority opinion this week in the case of Alleyne v. United States, Justice Clarence Thomas, joined by the Supreme Court’s four liberal justices, strengthened the Sixth Amendment right to a trial by jury for a criminal defendant facing a federal mandatory minimum sentence. At Slate, the liberal writer Mark Joseph Stern surveys this opinion and several others by the conservative justice and declares, “Thomas is much more than a Tea Party mouthpiece.”
It’s yet another example of a left-of-center writer acknowledging that while Justice Thomas may be a legal conservative, at least he’s a principled one, and, moreover, sometimes that means he votes in favor of “liberal” outcomes.
So far so good. But I’m afraid Stern lets his animosity towards Thomas’ legal conservatism get the better of him in this regrettable passage:
More than any justice in history, Thomas is an originalist, ruling exclusively by the letter of what he views as the Founders’ original intent in writing the Constitution. Because the Founders, for example, condoned “public dissection” and the “embowelling [sic] alive, beheading, and quartering” of prisoners, so too does Thomas.
Neither the Founders nor Thomas “condoned” anything of the sort. In fact, in the opinion to which Stern refers, Baze v. Rees (2008), Thomas argues that the original understanding of the Eighth Amendment prevents punishments “designed to inflict torture as a way of enhancing a death sentence.” As an example of such intentionally tortuous capital punishments, Thomas points to the very methods quoted by Stern. In other words, Stern’s example proves the opposite of the point he was trying to make.
This unfortunate error aside, it’s a mostly fair piece by a liberal writer trying to grapple with Thomas’ views.