The Economics of Judicial Conflict of Interest
By David Henderson
Jeffrey Toobin Implicitly Makes a Strong Case that May Surprise His Fans
There has been a lot of discussion, especially on the left, about whether Supreme Court Justice Clarence Thomas should recuse himself when that court gets to decide on the constitutionality of all or part of the 2010 health care law passed by Congress and signed by President Obama. The basic issue, it appears, is whether Justice Thomas has a conflict of interest because his wife, Virginia, has been an outspoken, and paid, opponent of the law.
On its face, the case for Thomas to recuse himself appears strong. Legal analyst Jeffrey Toobin has written a lengthy piece on the issue in the New Yorker. Although he never comes out and says it, one gets the impression that Toobin thinks so. The article is titled simply “Partners,” and what magazine editors call the “dec line, (sp?)” the statement underneath the title, is: “Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?”
Now, I know from long experience that the title and the dec line that the author chooses rarely make it into the final article. In over 200 articles I’ve written, the title I’ve chosen has been used fewer than 5 times and I’ve never even bothered to write a dec line. So maybe the impression is from the editor(s), not from Toobin.
But here’s what’s interesting: because Toobin is such a good reporter, he, whatever his intent, makes the case that Thomas should not recuse himself.
Here’s the closest Toobin comes to stating the view that Thomas should recuse himself:
As for whether Thomas should recuse himself regarding health care under the standards that prevail for lower-court judges, that appears to be a close question. “I think it is possible she”–Ginni Thomas–“might have significant interests in the dispute before the Court,” Gerhardt [Michael Gerhardt, a professor at the University of North Carolina School of Law] told me. “And these interests are not restricted only to financial ones. The code, after all, forbids judges from engaging in conduct that undermines their impartiality or the appearance of impartiality. In Thomas’s case, the evidence so far seems compelling enough to put the burden on the Justice to explain why he does not believe he has to recuse himself.” Patrick Longan, who holds a chair in ethics and professionalism at the law school of Mercer University, in Macon, Georgia, disagrees. “The standard is whether there is something materially to be gained by the judge or his spouse from the outcome of the litigation,” he said. “It’s hard for me to see how his vote in the case would help her materially, one way or the other.” In any event, there is no sign that Thomas plans to recuse himself on health care or on any other case related to his wife’s political activities.
In short, Toobin doesn’t take a position. So why do I say that Toobin makes a strong case for Thomas not recusing himself? Because a large part of the article is about Thomas’s judicial philosophy of upholding the original meaning of the Constitution. Whether you agree with Thomas or not, it’s clear that he had a well-established philosophy well before 2009, when his wife started to make money arguing against the new law. Consider this excerpt from Toobin’s article:
Thomas’s intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas’s career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court’s history. “Both were Southerners who came to the Court young and with very little judicial experience,” Amar said. (Thomas is from Georgia.) “Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It’s the same with Thomas and the Roberts Court. Thomas’s views are now being followed by a majority of the Court in case after case.”
The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society.
In short, despite the fact that almost every paragraph of his piece drips with contempt for Clarence Thomas, Toobin has made a convincing case that Clarence Thomas’s views precede by many years the income his wife made by pushing similar views. Clarence Thomas’s virtually certain vote to find ObamaCare unconstitutional when the issue comes up this year or next will have nothing to do with his wife’s income. And for making that so clear, we can thank the crack reporting of Jeffrey Toobin.