an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times has a story about the political activities of Virginia Thomas, the wife of Justice Clarence Thomas. Part of the story suggests that Virginia Thomas may be improperly benefiting from Supreme Court decisions in which Justice Thomas was in the majority.
The Times cites Virginia Thomas’s role as leader of the organization, Liberty Central, in light of the Court’s 2010 decision in Citizens United v. FEC (which held unconstitutional restrictions in the Bipartisan Campaign Reform Act on corporations and unions funding independent political broadcasts in candidate elections). Here is what the Times says:
Nonprofit groups with political agendas like Liberty Central are operating in this election cycle under evolving legal and regulatory standards, most notably the ruling last January by the Supreme Court in the Citizens United case, which eased restrictions on independent campaign spending by corporations and unions. In that case, Justice Thomas, long an advocate of dismantling campaign finance restrictions, was in the 5-to-4 majority. Wealthy individuals and some corporations, emboldened by the ruling, are giving to such groups to influence the election but still hide their tracks.
Whatever one thinks of Citizens United, this criticism is framed at too high a level of generality to be compelling. The Times's suggestion of impropriety isn’t too different from claiming that Justice Blackmun’s opinion in JEB v. Alabama improperly benefited his wife, Dorothy, when she was called to jury service, or arguing that there was something wrong about Justice Stewart deciding Katz v. United States given that his wife May Ann liked to speak on the telephone.
Americans are joiners and organizers. We get things done by acting in concert with other people. Every organization is governed by background legal rules (including constitutional rulings from the Supreme Court) that facilitate and limit the organization’s activity. Liberty Central is no more the beneficiary of Citizens United than are the many thousands of other organizations that might wish to run political ads. Virginia Phillips is no more a beneficiary than are the millions of other Americans whose organizational activities are now less constrained by federal statutory law.
the article is written in a way that leaves you wondering if the author doesn't understand the issues she is reporting on, or is actually trying to confuse her readers. But reading carefully, I don't think there is any implication that Justice Thomas's participation in CU was improper. Instead, I believe the suggestion is that donors to Liberty Central could have interests before the Court, and that Justice Thomas would therefore be required to recuse himself in cases involving them. Of course, the article lacks any evidence that there are donors with such interests, or that Justice Thomas would be aware of such interests if they existed. What the discussion of CU and Ginni's political activities has to do with this is unclear, but without it maybe the article wouldn't have been long enough to publish.
I believe the suggestion is that donors to Liberty Central could have interests before the Court, and that Justice Thomas would therefore be required to recuse himself in cases involving them. Of course is student aid, the article lacks any evidence that there are donors with such interests, or that Justice Thomas would be aware of such interests if they existed.
If this were a real problem, every liberal with a case before the court would donate a nominal amount of money to Liberty Central and then ask Thomas to recuse himself. Of course, LC can simply return the money to anyone who raises the issue. The spouse of a judge, or any other official, is entitled to have a life of their own.
I think Mrs. Thomas didn't lose her free speech rights just because her husband became a Supreme Court justice. So as a legal matter, she has the right to do what she is doing.
But as an ethical matter, there's a difference between her speaking out and her soliciting anonymous donations, and the second of those two things should actually be illegal (i.e., donors to a Supreme Court justice's spouse's political organization should be required to be identified). Anything else makes corruption a lot more possible.
But would it be different if (say) Virginia Thomas began to question the underlying legitimacy of the U.S. Government, or if the Justice posed with her under a banner that said, "Send Obama Back to Kenya?" That is, is there some point at which the advocacy becomes inappropriate, even assuming that it hasn't been reached?