The Supreme Court could decide how it will handle the health
care reform lawsuits as early as November 10. Supporters of the law
are busy filing amicus briefs, making legal arguments — and trying
to disqualify justices likely to find President Obama’s signature
legislation unconstitutional.
Liberals have disliked the idea of Clarence Thomas voting on the
Supreme Court for 20 years now. The current drumbeat began in
February when 73 House Democrats demanded the justice recuse
himself from any case involving the health care law because of his
wife’s work as a lobbyist and conservative activist. The ringleader
of this effort was that ethical giant, then Rep. Anthony Weiner
(D-NY).
“As members of Congress, we were surprised by recent revelations
of your financial ties to leading organizations dedicated to
lobbying against the Patient Protection and Affordable Care Act,”
the Democrats wrote in a letter. “We write today to respectfully
ask that you maintain the integrity of this court and recuse
yourself from any deliberations on the constitutionality of this
act.”
Evidently untroubled by Justice Elena Kagan’s work as solicitor
general for the Obama administration, Weiner’s warriors continued,
“Given these facts, there is a strong conflict between the Thomas
household’s financial gain through your spouse’s activities and
your role as an Associate Justice of the United States Supreme
Court.”
Weiner is gone, but apparently not forgotten. This fall a group
of 20 House Democrats excoriated Thomas for filing disclosure forms
that failed to mention his wife’s tenure as a senior fellow at the
Heritage Foundation. Wags might be tempted to joke that this could
actually bias Thomas
in favor of the individual mandate, but the Democrats weren’t
in a joking mood.
“Due to the simplicity of the disclosure requirements, along
with Justice Thomas’ high level of legal training and experience,
it is reasonable to infer that his failure to disclose his wife’s
income for two decades was willful, and the Judicial Conference has
a non-discretionary duty to refer this case to the Department of
Justice,” they wrote, calling for “possible criminal or civil legal
sanctions.”
Ginni Thomas’s affiliation with the Heritage Foundation wasn’t
exactly a closely guarded state secret. Since the ties are clearly
noted on the conservative think tank’s website
and Mrs. Thomas’ Wikipedia
page, it might be more reasonable to infer that the
non-disclosure was an accident. As it turns out, 14 of the 20
Democrats calling for the justice’s head had to file amendments
correcting errors and omissions in their own ethics reports.
Rep. Jesse Jackson Jr. (D-IL) acknowledged in January 2009 that
“due to a clerical oversight my previous financial disclosure
statements inadvertently omitted information about my wife’s
outside income.” Jackson’s filings had to be amended from 2004 to
2006. Rep. Earl Blumenthal (D-OR) neglected to disclose his wife’s
income from 2006 through 2010. Rep. John Conyers (D-MI), a former
chairman and current ranking member of the House Judiciary
Committee, made an error listing his wife’s assets in 2009 (her
outside income seemingly included bribes from selling her votes as
a member of the Detroit city council).
Nevertheless, calls for Thomas to recuse himself persist. But
when a Pulitzer prize-winning political fact-checking
website looked into the matter in March, most legal experts
interviewed said there was no conflict of interest, in one case
describing the charges as “entirely unmerited” and in another
“completely wrong.”
“In fact,” the Cato Institute’s Trevor Burrrus told the website,
“there is a better case to be made that upholding the law would
give his wife more ‘business’ in the future when as-applied
challenges are brought against Obamacare.” Even legal experts who
favored Thomas’ recusal admitted it was unclear the law required
it. Paul Campos of the University of Colorado Law School
acknowledged, “It’s not a clear-cut case,” while Steven Lubet of
Northwestern Law School allowed, “I think it is not correct to say
that [Thomas] has a financial interest in the outcome of the
proceeding.”
For retired Justice John Paul Stevens, the longtime leader of
the court’s liberal bloc, the question comes up regularly in
interviews about his new book. “I would say that I wouldn’t think
there’s any possibility that any of the activities of Mrs. Thomas
have had any impact on the analysis of Judge Thomas,” Stevens said.
“He has definite views; he’s been consistent over the years.”
Carrie Severino, chief counsel of the Judicial Crisis Network,
thinks those definite views help explain why Thomas has been
targeted instead of other conservative justices. “He’s been the
most consistent on the commerce clause,” Severino, who clerked for
Thomas, says. “They know how he’s going to vote.” She notes that
Thomas dissented in Gonzales v. Raich, which held that the
commerce clause allowed Congress to criminalize the cultivation and
use of home-grown marijuana, while Antonin Scalia voted with the
majority.
Severino says that Thomas’ critics hope to “devalue his vote” in
one of the most important Supreme Court cases of the young century.
Clarence Thomas has now been frustrating their hopes for two
decades.
