Virginia 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
Neo-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.