Clarence Thomas, Elena Kagan and the Battle Over Who Gets To Rule

As the Supreme Court prepares to take on a slate of big, history-shaping cases, the most weighty question is which justices will--or won't--get to decide the outcome. Victor Goode explains the ethics fight that's not going away any time soon.

By Victor Goode Jan 09, 2012

As the Supreme Court marks the halfway point of the 2011-2012 term it seems poised to make several decisions that will have a decisive bearing on our political landscape for years to come. The court has agreed to take on Arizona’s controversial anti-immigration law, a Texas reapportionment case that may determine how the Voting Rights Act will be interpreted and President Obama’s controversial health care law. As if that weren’t enough, the court is also embroiled in controversy over who may sit to decide these cases.

Last year Common Cause and the Alliance for Justice discovered that Justice Clarence Thomas failed to disclose the source of his wife’s income on the annual financial disclosure forms required of federal judges and most high-level federal officials. At first glance this error might have seemed a slight omission by a busy judge. Justice Thomas claimed he wasn’t even aware that he had to report his wife’s income and corrected the form shortly after the matter was reported.

But this new disclosure simply verified what critics of Justice Thomas already knew. His wife, Virginia Thomas had been a very well paid consultant for the conservative think tank The Heritage Foundation and more recently founded Liberty Central, a Tea Party lobbying group that has made reversing Obama’s health care legislation its number one target.

Several congressional Democrats have charged Thomas with a conflict of interest. They assert that he can’t fairly decide the constitutionality of Obama’s health care law when his wife is being paid to oppose it. Title 28 of the U.S. Code says that federal judges must remove themselves from cases where there is a conflict of interest. The statute lists specific instances of what constitutes a conflict, but also adds that removal is appropriate when a judge’s "impartiality might reasonably be questioned." While lower court judges may have their decisions on removal reviewed by the Supreme Court, judges on our highest court are left to police themselves.

Conservative critics have sought to deflect attention from Thomas by alleging that Justice Elena Kagan might have participated in shaping Obama’s health care law while she served as his solicitor general and is just as suspect for partiality as Thomas might be. They are obviously concerned about a potential vote along ideological lines. They know that if they lose Thomas, the court could potentially be deadlocked four to four on the health care case; lose them both and there’s still a conservative majority.

Last week Chief Justice John Roberts tried to dampen the growing controversy by stating in his annual report to Congress that he had full confidence in the choices made by all members of the court to decide cases in an impartial manner. While he did not mention any judge by name, it was clear that he was referring to the Thomas/Kagan controversy.

But the conservative argument on Kagan has a hollow ring to it. Kagan was asked about her role in shaping the health care law at her confirmation hearing last summer and testified under oath that she was not involved. On the other hand, recent records reveled that when Thomas was a Circuit Court judge he filled out the financial disclosure forms fully and accurately and listed his wife’s income. His more recent omissions seem to coincide with his wife’s very public role as a conservative political activist.

Some ethics experts say that Ginni Thomas’s income from this work does not equate to her husband having a financial stake in the outcome of the case. While case law supports this view, it doesn’t answer whether Justice Thomas’s impartiality might not "reasonably be questioned," as the statute states. Despite Roberts’s efforts, this controversy is not likely to go away.

With nearly 50 million Americans without health insurance, the court’s pending health care decision will have profound implications. Regardless of the eventual outcome, the question of who gets to decide may be as controversial as what eventually is decided.

Victor Goode is an associate professor at CUNY Law School and a board member of the Applied Research Center, which publishes