Justice Thomas and the question of judicial recusal

March 14, 2011

Clarence Thomas on C-SPAN during Supreme Court confirmation hearing, 1991Can a Supreme Court justice be disqualified from hearing a case?

This question has become more significant in the past few weeks as the controversy surrounding Justice Clarence Thomas has grown.

For those of you not familiar with the story, a nonprofit organization uncovered Justice Thomas’ failure to disclose at least $700,000 of his wife Virginia’s income.

“Failure” is probably putting it generously, since it connotes some level of mistake; honestly, I don’t know how likely it is that a sitting Supreme Court justice could mistakenly check the “NONE” box under “Spouse’s Non-Investment Income” for at least five years.

Regardless, the nondisclosure of Virginia Thomas’ income isn’t what has people all in a huff.  Rather, it’s the source of the income.

The source is the Heritage Foundation, according to the organization’s own tax filings.

The Heritage Foundation is a conservative think tank, but that fact, on its own, is inconsequential.

The problem arises because the Heritage Foundation has been lobbying heavily against the health care reforms passed last March.

Detractors allege that Virginia Thomas’ income from Heritage creates a conflict of interest for Justice Thomas if and when the Supreme Court hears the lawsuits on health care reform.

If Justice Thomas were a district court judge, it wouldn’t be much of an issue.

Federal law provides a mechanism under 28 U.S.C. § 144 which allows a party to file an affidavit that the judge hearing its case has a bias affecting the case’s outcome.  The judge is then replaced with another.

However, the statute does not apply to appellate judges, much less a Supreme Court justice.

Another statute, however, does apply to Supreme Court justices.

28 U.S.C. § 455 lays out grounds for judicial recusal, most notably whenever any personal, financial, or professional conflicts of interest present themselves.  Justice Thomas’ situation would easily fit into several of the statute’s scenarios.

The statute does not, on the other hand, provide a mechanism to compel a judge’s recusal at the time.  Instead, a party must allege bias on appeal.

That last bit is what creates a problem in Justice Thomas’ situation.  Specifically, appeal is impossible with the Supreme Court.

So, in truth, there is no legal mechanism to compel Justice Thomas or any other Supreme Court justice to recuse themselves no matter how great the conflict of interest.

What do you think?  Should Justice Thomas voluntarily recuse himself?  Should there be a mechanism to disqualify Supreme Court justices?  Are Justice Thomas’ conflicts of interest being overstated?