As Scott points out, Justice Clarence Thomas, writing for the majority, sees no problem with the system playing “psych!” with prisoners.
One could go back to Hudson v. McMillian to see that Thomas is no friend of the guests of the state. From Kevin Merrida and Michael Fletcher’s Supreme Discomfort: The Divided Soul of Clarence Thomas:
Before long, McMillian reappeared outside Hudson’s cell with another guard, Marvin Woods. They told Hudson to pack his belongings – he was headed to isolation. They handcuffed and shackled him him and led him to a corridor where they shoved him against a wall and began to beat him. “Hold him,” McMillian told Woods. “Let me knock his gold teeth out.”
A third guard, a supervisor named Arthur Mezo, noticed the commotion but chose not to intervene, other than to warn his two subordinates not to have “too much fun.” The beating left Hudson with a split lip, swollen eyes, body bruises, and a cracked dental plate. He was peeing blood. The court showed that he received no formal medical attention, but he spent most of the next three days curled under his bunk in the fetal position. “that was the only way I was comfortable,” he said.
Soon after oral argument, it became clear that Thomas was going to dissent. His views on the case startled some court insiders as soon as they began to emerge in draft opinions circulated among the justices. In Justice Harry Blackmun’s chambers, there was disbelief. Blackmun was a longtime champion of prisoner’s rights and in 1968 had written one of the first federal appellate court decisions declaring brutal treatment of inmates illegal. In a memo to his boss, Blackmun law clerk Jeff Meyer expressed his disdain for an early draft of Thomas’s dissent: “My vote for the most outrageous line is: ‘In my view, if there was anything in this case that would shock our society, it is the notion that a punishment that causes no injury at all or only minor injury, may be deemed cruel and unusual.'” Three weeks later, as Thomas honed his dissent, Meyer assured Blackmun that Thomas raised no legal points worth responding to. He then offered this assessment: “Overall, it’s an interesting window into his jurisprudence and view of the cope of the Constitution.”
Quoting court cases from the nineteenth century and citing early English law, Thomas strongly implied a position that he would fully argue in subsequent cases: that “punishment” as contemplated by the framers of the Constitution, had only to do with sentences imposed by judges, not with harsh conditions created by jailers. Thomas questioned whether prisoner mistreatment – from beatings to poor medical care to unsanitary conditions – was the business of the federal courts. He concluded that the court should have rejected Hudson’s claim. His was a position that would have reversed decades of court rulings that had slowly increased the legal protections extended to prison inmates.
In her opinion, Justice O’Connor directly challenged Thomas’s view:” To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the concept of dignity, civilized standards, humanity, and decency that animate the Eighth Amendment.” Blackmun was even more pointed in his criticism…. Using Thomas’s standard, Blackmun said, a whole raft of torture and abuse would lie beyond the reach of the Constitution. “In other words, the constitutional prohibition of ‘cruel and unusual punishment’ then might not constrain prison officials from lashing prisoners with leather straps, whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to undue heat or cold, or forcibly injecting them psychosis-inducing drugs,” Blackmun said. “These techniques, commonly thought to be practiced outside this nations borders, are hardly unknown within this nation’s prisons.”
Thus was John Yoo born…