Justice Thomas: Liberal?

Over at Slate, freelance writer Mark Joseph Stern, has an article examining the supposedly surprising jurisprudence of Justice Thomas:

Supreme Court Justice Clarence Thomas is frequently accused of being a partisan hack, a conservative lackey serving only the interests of the Republican Party. His votes are often portrayed as products of political ideology rather than constitutional philosophy, a practice he only encourages with his forays into political commentary. But as his recent opinions in Alleyne v. United States and the Myriad gene-patenting case illustrate, Thomas is much more than a Tea Party mouthpiece. That his views skew conservative is a product not of partisanship but rather of his deep, occasionally confounding dedication to originalist theory. And sometimes that dedication leads this already idiosyncratic justice to cast votes that would please Earl Warren.

Reader(s)™ will recognize this as a recurring theme of this blog, and I'm happy to see this published at Slate, which is generally a hotbed of the cynical, personality-focused coverage of the Supreme Court that I detest.

But the article contains at least one egregious error in its discussion of Justice Thomas's views on the Eighth Amendment, which Mr. Stern says include approval of "astonishingly torturous methods of capital punishment":

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.

This is laughably incorrect. The supposed source for this assertion is Justice Thomas's concurrence in Baze v. Rees, but Mr. Stern interprets the concurrence, um, incorrectly. Justice Thomas does discuss "embowelling alive, beheading, and quartering" of convicts, but not as examples of practices the Founders condone. On the contrary, he discusses these practices as the very "cruel and unusual" punishments he believes the Eighth Amendment was intended to outlaw:

That the Constitution permits capital punishment in principle does not, of course, mean that all methods of execution are constitutional. In English and early colonial practice, the death penalty was not a uniform punishment, but rather a range of punishments, some of which the Framers likely regarded as cruel and unusual. Death by hanging was the most common mode of execution both before and after 1791, and there is no doubt that it remained a permissible punishment after enactment of the Eighth Amendment . “An ordinary death by hanging was not, however, the harshest penalty at the disposal of the seventeenth- and eighteenth-century state.” Banner 70. In addition to hanging, which was intended to, and often did, result in a quick and painless death, “[o]fficials also wielded a set of tools capable of intensifying a death sentence,” that is, “ways of producing a punishment worse than death.” Id., at 54.

One such “tool” was burning at the stake. Because burning, unlike hanging,  was always painful and destroyed the body, it was considered “a form of super-capital punishment, worse than death itself.” Id., at 71. Reserved for offenders whose crimes were thought to pose an especially grave threat to the social order—such as slaves who killed their masters and women who killed their husbands—burning a person alive was so dreadful a punishment that sheriffs sometimes hanged the offender first “as an act of charity.” Id., at 72.

Other methods of intensifying a death sentence included “gibbeting,” or hanging the condemned in an iron cage so that his body would decompose in public view, see id., at 72–74, and “public dissection,” a punishment Blackstone associated with murder, 4 W. Blackstone, Commentaries 376 (1769) (hereinafter Blackstone). But none of these was the worst fate a criminal could meet. That was reserved for the most dangerous and reprobate offenders—traitors. “The punishment of high treason,” Blackstone wrote, was “very solemn and terrible,” id., at 92, and involved “embowelling alive, beheading, and quartering,” id., at 376.

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Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause.

So, while the article is a welcome corrective to the usual lazy reportage on Justice Thomas, it could sure use some fact checking.