Litigation

Who Decides on Justice Thomas and Recusal?

By Peter Hardin

How can public confidence in the impartiality of the Supreme Court be protected if the high court reviews a controversial federal law that is vigorously opposed by a justice’s spouse?

It’s more than a hypothetical question, law professor Steven Lubet of Northwestern University maintains in a Chicago Tribune commentary that focuses on Justice Clarence Thomas and his wife, Virginia Thomas, who heads a conservative nonprofit organization called Liberty Central (see Gavel Grab). “Let the justices be the judge,” is the headline, and it is Lubet’s answer.

The group’s website has called for repeal of “ObamaCare,” and has described the healthcare overhaul as “tyranny.” Lubet characterizes Virginia Thomas as a leading foe of the new health law. When the court is asked to review the law’s constitutionality, Justice Thomas’s possible disqualification in the case would be up to him alone–and would be very controversial, Lubet writes. The professor’s proposal:

“In that fraught atmosphere, public confidence would be best served if the entire Supreme Court were to make the decision on Thomas’ disqualification. It would be irresponsible to leave recusal completely to the discretion of the one man most likely to be swayed by competing considerations of duty and affection.”

In the Wall Street Journal’s Law Blog, Ashby Jones concurs, saying, “Lubet?s argument makes some sense: the current rule seems completely ineffectual. Why not have the parties submit briefings in cases like this ? and then have the entire court rule?”

Meanwhile, a number of Supreme Court justices, and some potential nominees as well, are discussed in a New York Times article about a prominent legal scholar’s judgments of them.

Harvard Law professor Laurence Tribe wrote the letter to President Obama. One of the most unflattering comments described then-Judge Sonia Sotomayor, now on the high court. “Bluntly put, she?s not as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the firepower of the Roberts/Alito/Scalia/Thomas wing of the court,” he wrote. Tribe now works at the U.S. Department of Justice.

Full post as published by The Gavel on October 29, 2010 (boomark / email).