There's a brief John Yoo moment in Clarence Thomas' dissent on the juvenile life without parole case that I can't help but highlight (his italics):
It is by now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous “‘methods of punishment" ... specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.
Thomas has previously argued that guards abusing prisoners doesn't amount to cruel and unusual punishment because only "judges -- not jailers -- impose punishment." As Daniel Savage noted in an LA Times piece written a few months ago, you can see how this kind of thinking on the Court filtered down to Yoo, who was a Thomas clerk and eventually went on to write the "shoddy" memos that justified the Bush administration's use of torture techniques. Justice Antonin Scalia specifically argued in an interview that torturing someone for information was OK:
"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.
Just so we're clear, according to two of the Court's most influential conservatives, the Constitution prohibits "torturous methods of punishment," just not, you know, torture. That would involve implementing "evolving standards of decency," which surely the Founders would never have endorsed.
-- A. Serwer
