Supreme Discomfort: Doubting the Thomases

Submitted by Brendan Fischer on

Clarence and Virginia ThomasVirginia Thomas, wife of United States Supreme Court Justice Clarence Thomas, recently created the conservative lobbying group Liberty Central, Inc. (http://libertycentral.org), raising concerns about political impartiality for the nation's highest court. Although Americans generally expect justices to be politically neutral and judicial rules prohibit judges from participating in political activity, those rules don't extend to spouses, and a justice's decision to recuse him or herself from a case is theirs alone. Ms. Thomas' group, which has connections to the Tea Party movement, plans to be involved in November's elections and issue "score cards" rating Congress members on their conservatism. According to the group's mission statement, "LibertyCentral.org will serve the big tent of the conservative movement" and aims to "make a difference in the fight for liberty and against the liberal Washington agenda."

Potential Conflicts of Interest

In addition to possible conflicts of interest arising from Justice Thomas hearing a case related to the group's political activities, concerns would also arise if he were to face a decision involving one of Liberty Central's donors. This concern is exacerbated by the Supreme Court's recent Citizens United decision, which permitted corporate dollars to flow into political campaigns: Ms. Thomas' Liberty Central can now accept donations from corporations, and be permitted to spend those funds advocating for candidates. What's more, because Liberty Central is organized as a 501(c)(4) nonprofit, the group can raise unlimited amounts of corporate money and largely avoid disclosing its donors.

Although federal statute 28 U.S.C. § 455(a) provides that any judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," the ultimate decision rests solely with Justice Thomas, with no chance for review. However, if Justice Thomas' past decisions on judicial recusal are any indication, he is unlikely to decline many cases. Justice Thomas dissented in last year's Caperton v Massey decision (129 S. Ct. 2252 (2009)), which prevented judges from hearing cases involving a party that was the primary contributor to that judge's campaign.

Framing the Issue

Lady JusticeNeo-Conservatives are likely to frame this as a free speech issue. Sue Hamblen, Liberty Central's national coordinator, told the Washington Post that Virginia Thomas "did not give up her First Amendment rights when her husband became a Supreme Court judge." Clearly, Ms. Thomas' activities and speech cannot be restricted by virtue of her husband's job, but our concern is not over her political activities -- it is about Justice Thomas' ability to remain impartial and fair, and about maintaining the integrity of the justice system.

The dilemma faced by Justice Thomas is similar to an issue faced by the Wisconsin Supreme Court in 2007. The Court issued a public reprimand to sitting Justice Annette Ziegler for failing to recuse herself from cases she heard as a lower-court judge, including one involving West Bend Bank, where her husband was on the Board of Directors. In its 2008 decision on the matter, the Court stated: "Any discipline less severe than a public reprimand would not adequately convey the gravity with which this court views Judge Ziegler's violation of a bright-line rule of the Code of Judicial Conduct."

When to Recuse?

We think that the standard for Justice Thomas' recusal should not merely be based upon whether Liberty Central is a party to a case before the Supreme Court, but on whether the case involves subject matter related to the group's activities, and especially if the case involves Liberty Central's donors. Justice Thomas may claim that he can hear such cases without any actual bias, but to avoid appearances of impropriety in the judicial system, the mere appearance of bias should compel recusal. Citizens and policymakers must be especially diligent, and keep a close watch on Liberty Central's political activities and donors, to ensure that our nation's Supreme Court maintains its neutrality and impartiality.

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Comments

Ridge Runner replied on

" .... raising concerns about political impartiality for the nation’s highest court. Although Americans generally expect justices to be politically neutral and judicial rules prohibit judges from participating in political activity, those rules don’t extend to spouses, and a justice’s decision to recuse him or herself from a case is theirs alone." Only the historically innocent can harbor any such illusions of political neutrality, Especially in recent decades, long since progressive judge nominee roasting campaigns which have added Borking to the vocabulary, it takes real chutzpah for one of them to post cheap shots like this. Read a little history, fellow. Here's a good place to start: http://www.michaelariens.com/ConLaw/justices/frankfurter.htm "The appointment of Frankfurter and other political liberals and progressives, many believed, would transform the Court. It didn't, and the reason why it didn't aids us in understanding the perceptions about and of the Court today." "During the 1950s and early 1960s, Frankfurter's vision of judicial restraint appeared increasingly out of step with a majority of the Court." The 'transformation' expected in the 1940's was delayed until the 1950's and after, but it is simply mendacious to suggest that the public still expects judges to rule in a politically neutral fashion, after decades of intense campaigning by all sides to achieve the exact opposite, as their political inspiration, FDR, had attempted a bit prematurely to do.

Bruce E. Woych replied on

I followed your link and about the only thiong I can commend you on is the fact that you brazenly supplied your source. Everyone should read the profile of this relatively unknown justice: http://www.michaelariens.com/ConLaw/justices/frankfurter.htm But you either misread or misrepresented the material in your own source. Justice Frankfurter was a "rule by law" man not a poitical pundit. Justice Thomas, on the other hand, is strictly in place because he was hand selected for his political bias. Whjile it is true that the independent stature of Justices on the Supreme Court has granted them individual posturing, the conservative nature of Justice Thomas' appointment was a neoconservative reactionary maneuver meant to gridlock the liberal interpretation of law for political purpose. The fact that his wife is actively involved in what many feel is a fascist and (if not brown shirt at least tea stained) front group lends itself to public scrutiny and the pressure that media attention is intended to place upon the otherwise unchecked balances of government institutions. The real question that should be raised, here, is why the American people are putting up with a Supreme Court system that is instilled by the very Presidents that they are supposed to be in checks and balances with in protection of the constitution. It is high time that we demand a new system of electing these judges. This is not to say that I agree with all the talk about constitutional amendments (which seem to be appearing like ants in a candy factory). It is to say that this is 2010 and the communication, education and potential for direct elections of Judges is a very feasible item to consider in changes to the infrastructure of our system. Greater participation is essential and should be part of a new gender for reinforcing "INTENSIVE DEMOCRACY" as a system that does not slant towards a minority dictating to the majority. Justice Frankfurter was put in place directly as a reform to critical curruption that was destroying the economy with greed much the same way and, indeed, parallel to the very problems we have today. If the front groups have their way today, instead of reform we are expect to conform to the rule of financial greed and corruption. Thjere is no doubt these same self righteous demogogues would create a De-mocker-icy out of our system and place Glen Beck into the Supreme Court if they could have their way.