David R. Henderson  

The Economics of Judicial Conflict of Interest

Some Macro to read and to thin... Onward towards Snow Crash

Jeffrey Toobin Implicitly Makes a Strong Case that May Surprise His Fans

There has been a lot of discussion, especially on the left, about whether Supreme Court Justice Clarence Thomas should recuse himself when that court gets to decide on the constitutionality of all or part of the 2010 health care law passed by Congress and signed by President Obama. The basic issue, it appears, is whether Justice Thomas has a conflict of interest because his wife, Virginia, has been an outspoken, and paid, opponent of the law.

On its face, the case for Thomas to recuse himself appears strong. Legal analyst Jeffrey Toobin has written a lengthy piece on the issue in the New Yorker. Although he never comes out and says it, one gets the impression that Toobin thinks so. The article is titled simply "Partners," and what magazine editors call the "dec line, (sp?)" the statement underneath the title, is: "Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan?"

Now, I know from long experience that the title and the dec line that the author chooses rarely make it into the final article. In over 200 articles I've written, the title I've chosen has been used fewer than 5 times and I've never even bothered to write a dec line. So maybe the impression is from the editor(s), not from Toobin.

But here's what's interesting: because Toobin is such a good reporter, he, whatever his intent, makes the case that Thomas should not recuse himself.

Here's the closest Toobin comes to stating the view that Thomas should recuse himself:

As for whether Thomas should recuse himself regarding health care under the standards that prevail for lower-court judges, that appears to be a close question. "I think it is possible she"--Ginni Thomas--"might have significant interests in the dispute before the Court," Gerhardt [Michael Gerhardt, a professor at the University of North Carolina School of Law] told me. "And these interests are not restricted only to financial ones. The code, after all, forbids judges from engaging in conduct that undermines their impartiality or the appearance of impartiality. In Thomas's case, the evidence so far seems compelling enough to put the burden on the Justice to explain why he does not believe he has to recuse himself." Patrick Longan, who holds a chair in ethics and professionalism at the law school of Mercer University, in Macon, Georgia, disagrees. "The standard is whether there is something materially to be gained by the judge or his spouse from the outcome of the litigation," he said. "It's hard for me to see how his vote in the case would help her materially, one way or the other." In any event, there is no sign that Thomas plans to recuse himself on health care or on any other case related to his wife's political activities.

In short, Toobin doesn't take a position. So why do I say that Toobin makes a strong case for Thomas not recusing himself? Because a large part of the article is about Thomas's judicial philosophy of upholding the original meaning of the Constitution. Whether you agree with Thomas or not, it's clear that he had a well-established philosophy well before 2009, when his wife started to make money arguing against the new law. Consider this excerpt from Toobin's article:
Thomas's intellect and his influence have also been recognized by those who generally disagree with his views. According to Akhil Reed Amar, a professor at Yale Law School, Thomas's career resembles that of Hugo Black, the former Alabama senator who served from 1937 to 1971 and is today universally regarded as a major figure in the Court's history. "Both were Southerners who came to the Court young and with very little judicial experience," Amar said. (Thomas is from Georgia.) "Early in their careers, they were often in dissent, sometimes by themselves, but they were content to go their own way. But once Earl Warren became Chief Justice the Court started to come to Black. It's the same with Thomas and the Roberts Court. Thomas's views are now being followed by a majority of the Court in case after case."

The implications of Thomas's leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society.

In short, despite the fact that almost every paragraph of his piece drips with contempt for Clarence Thomas, Toobin has made a convincing case that Clarence Thomas's views precede by many years the income his wife made by pushing similar views. Clarence Thomas's virtually certain vote to find ObamaCare unconstitutional when the issue comes up this year or next will have nothing to do with his wife's income. And for making that so clear, we can thank the crack reporting of Jeffrey Toobin.

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COMMENTS (11 to date)
Bob Murphy writes:

Also, strictly speaking, if his wife gets paid to lobby against ObamaCare, then they would financially suffer if it were repealed...?

BD writes:

Bias is alive and well, and will always be alive, on all sides of all issues.


Mark Brady writes:

Jeffrey Toobin: "Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties."

There's conservative and then there's conservative. Justice Thomas is prepared to extend executive privilege when he gets the chance so I am disappointed in many of his decisions.

ThomasL writes:

The financial impact is questionable at best. One could argue that she may gain by continued lobbying if the bill is upheld -- and there will be a lot of lobbying to be done! Alternatively she may gain in reputation if people believe her influence is what swung his vote. I find that unlikely, since his vote is largely expected to be against it.

If we call the financial aspects a wash, then we are left with the fact that, presumably, Thomas' wife does not like the bill. Rather than a financial gain or loss, the gain or loss here is one of upsetting his wife or making her happy.

This is only troubling because in this single instance we know she does not like the bill. However, one has to expect that judges routinely run the risk of upsetting (or pleasing) their spouses with their decisions. This flies under the radar because their spouses rarely comment publicly. That doesn't tell us at all whether they comment privately over eggs and toast in the mornings.

Whether his wife had ever publicly lobbied against this or not, she is very likely to have commented on it to him at some time if she felt strongly on the issue. Do we really expect that no spouse can comment on any political that may, at some unspecified date in the future, end up in court? How exactly is that to be enforced?

He incurs no additional risk of upsetting or likelihood of pleasing his wife whether we know what she wants or not. He knew it all along, either way. That is, the disclosure doesn't make a bit of difference to the fundamentals of the situation. (BD's link talks something on these lines, that disclosure is not always elucidating.)

One might say that it would have been prudent for her not to have lobbied, since it is now becoming an issue. Then again, if he used his influence in order to prevent her from taking a client she otherwise would have taken, isn't that bias as well?

Tom West writes:

He knew it all along, either way. That is, the disclosure doesn't make a bit of difference to the fundamentals of the situation.

I would say it greatly increases the *perception* of partiality, which is also a reason to recuse oneself.

We cannot examine the inner thoughts of the justices, so we demand that judges recuse themselves when we think there a good chance that an individual might be influenced by external factors.

It is not a strike against the judges, it is an acknowledgement of the reality that we might feel suspicious of the judges' verdict if we see they have an interest in the outcome.

Ben Bursae writes:

@Tom West: It is not a strike against the judges, it is an acknowledgement of the reality that we might feel suspicious of the judges' verdict if we see they have an interest in the outcome.

This is controverted, though, as David points out, by the fact that most people would bet heavily on Justice Thomas finding ObamaCare unconstitutional based on his years of judicial writings, even without knowing of his wife's lobbying. Acknowledging this reality, people's suspicions can then be put to bed, or simply cast aside as whining lamentations coming from one side of the issue, who simply wish a justice's vote wouldn't count in this case.

Chris Koresko writes:

I'm not claiming this is true, but I recall conservative op-ed writers maybe half a year ago talking about the push by Democrats to get Thomas to recuse himself on this issue.

Some of them suggested that the real reason for this push is to protect justice Kagan from being forced to recuse herself over her involvement in preparing a judicial defense of ObamaCare while working as part of the Administration. Presumably that would work by provoking conservatives to say things in defense of Thomas which liberals could then throw back at them in defense of Kagan.

Mike Thomas writes:

Public figures should refrain from not only impropriety but also the appearance thereof. On its face, this issue presents an apparent conflict of interest.

The justice's backgrounds and past views has to be brought in to justify his not recusing himself. His wife has been paid to oppose something and he will now have a vote deciding whether it should be repealed. Politics aside, on its surface, this is an apparent conflict.

steve writes:

All this does is further demonstrate how far gone the legal profession is when it comes to ethics. Judges are married to political activists and politicians. They are, without a doubt, influenced by those people. How can you possibly separate out the influence that comes from being married to a Supreme Court justice or even a federal judge in the job market?

In the end, I guess it does not matter. No one believes that judges are impartial anymore. But, if judges really wanted us to believe it, they would stop this kind of stuff.


barbra writes:

While i agree with many posters that in general Clarence Thomas is a disaster, as a thinking human being I am offended that we don't trust judges to use their best judgement according to the law. I think most of us would feel a little put out if we were told that we didn't have the wherewithal to separate our public duties from our personal desires.

David Clayton writes:

On the question of SHOULD he reduce himself, it looks to me that both Toobin and Henderson miss the boat.

The passage included by Henderson quotes two legal experts who describe fundamentally different interpretations of the federal statute covering judicial recusal. "The code... forbids judges from engaging in conduct that undermines their impartiality or the appearance of impartiality," says one. "The standard is whether there is something materially to be gained by the judge or his spouse from the outcome of the litigation," says the other.

Which one has it right?

As Jesse Jackson famously said, the question is moot. Thomas is most unlikely to recuse himself because he doesn't have to, which Toobin does explain clearly: "[T]he law is clear that the decision is entirely up to Thomas; the Supreme Court operates on an honor system. The federal statute governing judicial conflicts of interest covers only lower-court judges."

And for an issue of such import, it's hard to picture ANY justice removing himself or herself. The only constituency I could see mattering to Thomas on this decision would be the other justices, and I can only imagine them taking action if perceiving the conflict was comparable to perceiving the sun.

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