This ought to be a black and white issue - Justice Thomas simply must recuse himself. End. Of. Discussion.
When the Supreme Court hears arguments next week, it will mark the fifth anniversary of Justice Clarence Thomas’s silence during oral argument — unless he chooses to re-enter the give-and-take. We hope he will.
This milestone has stirred a wide conversation about his effectiveness as a justice following another about his ethics. They are actually related. How Justice Thomas comports himself on the bench is a matter of ethics and effectiveness, simultaneously. His authority as a justice and the court’s as an institution are at issue.
Last week, 74 Democrats in Congress cited the threat to the court’s authority when they asked Justice Thomas to recuse himself from an expected review of the health care reform law. This came after an announcement by his wife, Virginia, a lobbyist, who said she will provide “advocacy and assistance” as “an ambassador to the Tea Party movement,” which, of course, is dedicated to the overturning of the health care law.
The representatives based their request on the “appearance of a conflict of interest,” because of a conflict they see between his duty to be an impartial decision-maker and the Thomas household’s financial gain from her lobbying. If Mrs. Thomas were involved as a party in the litigation about the health law, or the litigation’s outcome proved central to her professional life, those classic conflicts would require him to recuse himself. The annual requirement that the justice disclose the sources of his household income is designed to address that issue.
Still, the reputations of the justice and the court — which depend on public confidence — are at issue because of Mrs. Thomas’s lobbying. Justice Thomas’s attendance at a political event also seemed ill advised.
The court relies on each justice individually to judge whether he or she should not hear a case because of bias or the appearance of bias. It’s a bad approach, but it underscores Justice Thomas’s responsibility for his comportment and for acting in ways that contribute to the court’s authority.
Taking part in oral arguments would be good for the justice and the court. In a landmark article about judging, the scholar John Leubsdorf said a justice should abide by three principles: avoid basing a vote on personal considerations; avoid basing a vote on facts learned outside the case; and consider both sides’ arguments. Taking part in arguments is a way for Justice Thomas to convey that he honors the third principle. By engaging with lawyers for both sides in cases and showing open-mindedness in exchanges with them, he would show his dedication to the court’s impartiality and to its integrity as an institution.