Life time appointments to the Supreme Court are a double-edge sword. On the one hand, it is more difficult for public opinion to cloud the Justices’ readings of the Constitution. Without elections of the Justices, they are free from political pandering and saved from the possible problems of campaign contributions. Public opinion is inconstant, but the Constitution rarely changes.
On the other hand, the Justices have little accountability. Even on the issue of conflicts of interest the Justices are left to their own discretion. This creates a unique situation in which a Justice may refuse to recuse himself from a case even when it is clear that a conflict of interest exists.
The issue of conflicts of interest on the Court is especially relevant in light of Virginia Thomas’s recent career choices. Better known as Ginni, Virginia Thomas is the wife of Justice Clarence Thomas and the recent founder of Liberty Central, a non-profit organization dedicated to supporting conservative candidates aligned with the Tea Party movement. Videos and articles on the organization’s website use buzz words such as “tyranny,” “socialism,” and “elitism” to describe Washington. Clearly, Ginni Thomas is not shy about making her opinions known.
It is, of course, Ginni Thomas’s right to involve herself in the political process. While other spouses of Supreme Court Justices have quietly remained behind the scenes, Mrs. Thomas has proudly entered the political fray. The possible problem is not about her at all. Instead, the real issue comes with how Justice Thomas will make sure that this new overt activism does not influence his judging. As the New York Times reported, “It is the most partisan role ever for a spouse of a justice on the nation’s highest court,” and this role means that Justice Thomas should be even more careful about recognizing conflicts of interest. So far, he has not attended any of the numerous Tea Party rallies with Mrs. Thomas, but there is the possibility that her work may influence his judging.
While Liberty Central does not participate in any litigation, there is always the problem of donors to the organization. Federal law dictates that judges recuse themselves in instances where a family member could have a monetary interest, but the choice to recuse oneself is left to the individual Justice. Liberty Central has no requirement to reveal who its major donors are according to 501(c)(4) , and this only adds more to the accountability problem for Justice Thomas. Without knowing who the donors are, the public can never be sure that he is recusing himself in all cases in which he could possibly be influenced by his wife’s work.
Issues of conflict of interest are nothing new to the Court. Justice Scalia received criticism in 2004 after he failed to recuse himself in Cheney v. USDC for District of Columbia. The case involved then Vice President Dick Cheney, with whom Justice Scalia had recently dined and accompanied on a hunting trip. More recently, Justice Kagan has recused herself from several cases that she was involved in during her time as Solicitor General.
This pick-and-choose type of solution to the conflict of interest problem is clearly less than optimal. The Court thrives on its ability to act outside of the normal political arena, but it is also damaged by these insinuations of secondary motives in cases. Ginni Thomas is entitled to exercise her rights as a citizen, but, like or not, the public deserves some type of assurance through disclosure of her organization’s major donors that Justice Thomas is recusing himself when he should. While clearer guidelines on when Supreme Court Justices should sit out on cases, the best that the public can hope for now is that the sound judgement we hope Justices use on every case is also used to decide whether they have a conflict of interest.
PHOTO CREDIT: U.S. Government