Justice Served? Maybe Not by Scalia and Thomas
“Fair only comes once a year and you gotta pay to get in it.” This is one of the best things I learned in high school (the other was typing with my fingers on the correct keys). All due respect to Principal Madden for teaching that lesson, though, some things are in fact supposed to be fair, including (perhaps especially) our judicial system.
Yet there’s pretty staggering evidence that justices on the U.S. Supreme Court have participated in decisions that gave big wins to some of their powerful friends. So Common Cause is asking Attorney General Eric Holder and the Department of Justice to take a look at whether justice has been served.
We ask judges all the time to recuse themselves from sticky situations where they can’t be impartial or could have the appearance of not being impartial. But no one asked the question in January 2010 when the Court’s decision in Citizens United vs. Federal Election Commission, 130 S. Ct. 876 (2010) ended restrictions on corporate and union political spending that had been in place since 1947, fueling a surge in secret and independent spending in the 2010 elections—more than $296 million in spending on the 2010 Congressional midterms, $135 million of which came from undisclosed donors.
In the year since that decision, new information has come to light that raises serious questions about the impartiality of Justices Clarence Thomas and Antonin Scalia in the Citizens United case. It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision: news reports have revealed that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision. However, no mention of such an event is listed on the Justices’ disclosure forms for the corresponding years. With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.
Whether Thomas and Scalia were fair or not isn’t in question. What’s in question is whether there was enough uneasiness about their relationships that they should’ve recused themselves from the case entirely. Had they done so, the decision would have unquestionably gone the other way.
In a letter to the Department of Justice, Common Cause President Bob Edgar said: “Avoiding bias in a case that affects every voter in our democracy is critical, both to prevent injustice and to avoid further damaging the public’s confidence in our judicial system and the rule of law.”
It looks questionable, and the Court has previously said that looking questionable is enough to qualify as being questionable.
- Group: Scalia, Thomas had Citizens United conflict (Politico, Jan. 19, 2011)
- Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases (New York Times, Jan. 19, 2011)*
- Group says Scalia, Thomas have conflicts (UPI, Jan. 20, 2011)
- Group: Supreme Court justices ‘participated in political strategy sessions’ before Citizens United (The Raw Story, Jan. 19, 2011)
- Common Cause Asks DOJ to Investigate Scalia and Thomas Over Citizens United (National Journal, Jan. 20, 2011)
- Group Asks DOJ to Examine Alleged Ties Between Kochs and High Court (Wall Street Journal, Jan. 20, 2011)
- We the People, inc. (Jonathan Mills, jonify.com, Jan. 20, 2011)
- Group Requests DOJ To Investigate Scalia and Thomas Involvement With Koch Corporate Fundraisers (Lee Fang, ThinkProgress.com, Jan. 20, 2011)
- Should Scalia and Thomas Be Retroactively Recused From Citizens United? (Jonathan Turley, Jan. 20, 2011)
- 2 Supreme Court judges had conflict of interest in campaign finance case, group says (Tom Hamburger, LA Times, Jan. 20, 2011)
- Roles of Justices Scalia and Thomas in Citizens United Under Scrutiny (People For Blog, Jan. 20, 2011)
- Liberal Group Links Scalia and Thomas to Koch Brothers (FrumForum.com, Jan. 20, 2011)
*Thursday’s New York Times story about Common Cause’s request to the Justice Department contained a serious error. The story, Advocacy Group Says Justices May Have Conflict on Campaign Finance Cases, stated that Common Cause is demanding that Justices Clarence Thomas and Antonin Scalia disqualify themselves from hearing all campaign finance cases. That is not the case. Common Cause asked the Justice Department to investigate whether Scalia and Thomas should have recused themselves only from the Citizens United case.
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