Justice Thomas Doesn’t Ask Questions, But He Certainly Should Have Some Answers
Justice Clarence Thomas is famous for his silence. While his fellow Supreme Court justices regularly challenge and work out complex points with the lawyers who appear before them, Justice Thomas has not asked a question from the bench for five years and counting. Unfortunately, he has been quiet on another matter as well: the mounting concerns that he has flouted ethics and financial disclosure rules in accepting gifts and favors from wealthy friends who have a stake in the cases he decides.
Justice Thomas can choose not to ask questions. But it’s clearly time that he answered some.
Justice Thomas has, for at least the past few years, walked along the blurry edge that divides unethical conduct from acceptable practices on the Supreme Court. He notoriously chose not to disclose major sources of family income on federal forms for more than a decade in violation of federal law. Although he reported no income earned by his wife Virginia, she in fact earned hundreds of thousands of dollars. Even worse, some of the income he failed to disclose came from a conservative think tank that frequently files briefs with the Court. He also drew fire for attending, with Justice Antonin Scalia, a private get-together sponsored by billionaire political powerhouses David and Charles Koch whose pet corporate causes often come across the Justices’ desks.
Then, this week, the New York Times broke the story of Thomas’ close friendship and mutual back-scratching with a politically active real estate magnate Harlan Crow. Crow, the Times reported, “has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass [valued at over $19,000] and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group.” He also, the Times discovered, has been trying to hide his role as the main benefactor behind a multi-million dollar museum in Georgia that is a pet project of the Justice. In addition, the Times story raised concerns about whether some of Justice Thomas’s travel was underwritten by Mr. Crow and whether such support was accurately disclosed in the Justice’s notoriously inaccurate financial disclosures.
Crow isn’t just a friend of Thomas who happens to be rich. He’s active in political causes, and has “served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court” including one, the American Enterprise Institute, that gave Justice Thomas a $15,000 bust of Lincoln.
Obviously, Supreme Court Justices are allowed to have friends, just like the rest of us. But unlike the rest of us, their friendships — especially when they involve expensive gifts and multimillion dollar favors — can result in momentous conflicts of interest, or the appearances of conflicts, that affect the entire country. Who Justice Thomas chooses to befriend is his own private business. But who he or his pet projects receive huge gifts from is all of our business.
Ethics issues on the high court can be tricky, since Justices aren’t required to abide by any specific set of rules and don’t have a higher court to keep them in line. But many, including Thomas’ colleagues Anthony Kennedy and Stephen Breyer, say that the justices hold themselves to the same code of conduct that regulates other federal judges and stipulates that judges “should avoid impropriety or the appearance of impropriety in all situations.” Failure to comply with the code of conduct “diminishes public confidence in the judiciary and injures our system of government under law.”
This is why the American people have the right to answers from Justice Thomas. Americans have become increasingly frustrated in recent years as the Supreme Court has handed down decision after decision that privileges the interests — and profits — of corporations over the rights of individual Americans to hold them accountable. Citizens United v. FEC was one such decision. Another is this week’s decision in Dukes v. Wal-Mart, which took away the ability of as many as 1.5 million victims of pay discrimination to band together in court to hold the company accountable for its discriminatory policies. Average Americans can’t afford a ride on a private jet or an expensive work of art, let alone afford to give these as a gift to a Supreme Court justice. Even if the motivations behind all these gifts are entirely pure, accepting them casts doubt on a judge’s ability to be impartial.
Justice Thomas needs to be open with the American people, all of whose lives are affected by Supreme Court decisions. He needs to tell us who is paying for his pet causes and whether he asked them to do so. He needs to tell us where his family income is coming from and whether it benefits from his work on the Court. He needs to tell us what gifts he’s received from individuals and organizations that have a direct interest in the decisions he makes. And he needs to tell us that he will recuse himself from any case that he appears to have a financial interest in.
If Justice Thomas wants us to trust that he will give a fair hearing to all Americans, regardless of cash or connections, he needs to be open and honest with us about the circles of influence he inhabits.
It’s time for Justice Thomas to speak up. The Supreme Court’s integrity depends on it.
By: Michael B. Keegan, President, People For The American Way, Published in HuffPost Politics, June 23, 2011
How States Are Rigging The 2012 Election
An attack on the right to vote is underway across the country through laws designed to make it more difficult to cast a ballot. If this were happening in an emerging democracy, we’d condemn it as election-rigging. But it’s happening here, so there’s barely a whimper.
The laws are being passed in the name of preventing “voter fraud.” But study after study has shown that fraud by voters is not a major problem — and is less of a problem than how hard many states make it for people to vote in the first place. Some of the new laws, notably those limiting the number of days for early voting, have little plausible connection to battling fraud.
These statutes are not neutral. Their greatest impact will be to reduce turnout among African Americans, Latinos and the young. It is no accident that these groups were key to Barack Obama’s victory in 2008 — or that the laws in question are being enacted in states where Republicans control state governments.
Again, think of what this would look like to a dispassionate observer. A party wins an election, as the GOP did in 2010. Then it changes the election laws in ways that benefit itself. In a democracy, the electorate is supposed to pick the politicians. With these laws, politicians are shaping their electorates.
Paradoxically, the rank partisanship of these measures is discouraging the media from reporting plainly on what’s going on. Voter suppression so clearly benefits the Republicans that the media typically report this through a partisan lens, knowing that accounts making clear whom these laws disenfranchise would be labeled as biased by the right. But the media should not fear telling the truth or standing up for the rights of the poor or the young.
The laws in question include requiring voter identification cards at the polls, limiting the time of early voting, ending same-day registration and making it difficult for groups to register new voters.
Sometimes the partisan motivation is so clear that if Stephen Colbert reported on what’s transpiring, his audience would assume he was making it up. In Texas, for example, the law allows concealed handgun licenses as identification but not student IDs. And guess what? Nationwide exit polls show that John McCain carried households in which someone owned a gun by 25 percentage points but lost voters in households without a gun by 32 points.
Besides Texas, states that enacted voter ID laws this year include Kansas, Wisconsin, South Carolina and Tennessee. Indiana and Georgia already had such requirements. The Maine Legislature voted to end same-day voter registration. Florida seems determined to go back to the chaos of the 2000 election. It shortened the early voting period, effectively ended the ability of registered voters to correct their address at the polls and imposed onerousrestrictions on organized voter-registration drives.
In 2008, the U.S. Supreme Court, by 6 to 3, upheld Indiana’s voter ID statute. So seeking judicial relief may be difficult. Nonetheless, the Justice Department should vigorously challenge these laws, particularly in states covered by the Voting Rights Act. And the court should be asked to review the issue again in light of new evidence that these laws have a real impact in restricting the rights of particular voter groups.
“This requirement is just a poll tax by another name,” state Sen. Wendy Davis declared when Texas was debating its ID law early this year. In the bad old days, poll taxes, now outlawed by the 24th Amendment, were used to keep African Americans from voting. Even if the Supreme Court didn’t see things her way, Davis is right. This is the civil rights issue of our moment.
In part because of a surge of voters who had not cast ballots before, the United States elected its first African American president in 2008. Are we now going to witness a subtle return of Jim Crow voting laws?
Whether or not these laws can be rolled back, their existence should unleash a great civic campaign akin to the voter-registration drives of the civil rights years. The poor, the young and people of color should get their IDs, flock to the polls and insist on their right to vote in 2012.
If voter suppression is to occur, let it happen for all to see. The whole world, which watched us with admiration and respect in 2008, will be watching again.
By: E. J. Dionne, Opinion Writer, The Washington Post, June 19, 2011
Conservative Legal Luminaries Concede: The Individual Mandate Is No Unique Threat To Freedom, After All
As summarized one month ago in a post here on Jonathan Chait’s blog, conservatives reacted with fury to an article I wrote for Slate in which I pointed out that two major components of House Budget Committee Chair Paul Ryan’s Roadmap for America’s Future closely resemble the much-demonized “individual mandate” in the Affordable Care Act. In particular, I noted that the ACA provision requiring health insurance has precisely the same kind of impact on individual purchasing decisions as Ryan’s roadmap, and is, if anything, less coercive than the Roadmap proposal to provide a tax credit to individuals who purchase health insurance, as a replacement for the current exclusion from income of employer-sponsored health insurance. The ACA imposes a tax penalty on individuals who choose not to purchase health insurance. The Ryan Roadmap, on the other hand, provides a tax credit to individuals who choose to purchase health insurance—a technical distinction, I suggested, without an economic or other real-world difference.
National Review, the Weekly Standard, and Hot Air raised various objections to this point, which was seconded by Ezra Klein in the Washington Post and by Jonathan in TNR. But recent oral arguments before federal appeals courts hearing legal challenges to the ACA should quiet such protests once and for all. In these arguments, two of the most celebrated members of the Right’s legal elite acknowledged that there is no daylight between the ACA mandate-plus-penalty and a Ryan-type tax credit universally conceded to be constitutional.
The first instance of this occurred on June 1, when Sixth Circuit Judge Jeffrey Sutton, sitting on a three-judge panel in Cincinnati in a case brought by the conservative advocacy group Thomas More Law Center, floated the hypothetical idea of a tax credit alternative to the ACA approach. The Law Center’s attorney, Robert Muise, acknowledged that “you could provide a credit for health insurance, there’s no prohibition on that.” To which Judge Sutton responded:
You think it would be just as coercive to say to people, everybody pays the same additional tax, it’s a health care tax, everybody pays it and the only people that don’t pay it, i.e. get a credit, are those with insurance, you think that would be as coercive?
Muise contended that a tax credit was different because it encouraged activity—namely the purchase of health insurance—whereas the ACA provision penalized a “failure to act.” But Sutton didn’t buy it:
If that’s your view, then just pay the penalty, pay the penalty, don’t get insurance, don’t be forced to do anything, in that sense, if you think they’re equivalent, in that sense, no one is forced to do anything, because the economic incentives are the same in both settings, you can’t say the law requires you to buy it, the law just penalizes you if you don’t.
Judge Sutton is not the first person to observe that the ACA’s allegedly freedom-destroying mandate is operationally indistinguishable from commonplace tax incentive provisions. But, apart from having actual decisional authority on the matter, Sutton enters this space with formidable ideological and professional credentials. One of the first batch of appeals court nominees picked by President George W. Bush, Sutton, though only 42 years old, earned his front rank position as the energizer bunny of the Rehnquist Court’s late 1990’s drive to shrink Congress’ domestic regulatory authority in the name of “federalism.” As a lawyer, Sutton argued and won, usually by bitterly contested 5-4 margins, a raft of decisions striking or narrowing provisions of the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Violence Against Women Act, the Clean Water Act, and regulations implementing the 1964 Civil Rights Act, among others. He famously once told Legal Times, “I really believe in this federalism stuff.” Sutton’s professional standing was unquestioned; appointed by the Supreme Court in 2001 to represent a prison inmate, Sutton won a unanimous decision and unusually explicit praise from its author, Justice Ruth Ginsburg, for “his able representation.”
Of course, Sutton’s verbal acknowledgement that the ACA individual mandate is not uniquely coercive, emphatic though it appeared, is no guarantee that he will not strike down a law that Republican orthodoxy demonizes as a drastic expansion of federal power. Nevertheless, his on-the-record statement leaves the case against the ACA mandate resting at best on a hypertechnical foundation lacking in substance.
The second acknowledgement of the ACA mandate’s kinship with uncontroversial tax incentives occurred a week later in Atlanta, at the June 8 argument before a panel of the Eleventh Circuit Court of Appeals in the case against ACA brought by 26 Republican state attorneys general and governors. During the argument, the Republicans’ counsel, Paul Clement, attempted to sound a reasonable note. He said, “There’s lots of different ways that Congress could incentivize people to get to the exact same result. They could have passed a new tax and called it a tax, and then they could have given people a tax credit for paying for qualifying insurance.”
Again, Clement’s observation was not original. But in addition to being the Republican opponents’ lawyer, Clement also served—with universally acknowledged distinction—as George W. Bush’s Solicitor General. Recently, he made headlines by resigning his 7 figure-per-year partnership in the Atlanta-based firm, King & Spalding, when the firm precipitously withdrew from representing his client, the House of Representatives, to defend the federal Defense of Marriage Act, aka DOMA.
The significance of Clement’s functional equivalence concession was not lost on Eleventh Circuit Judge Stanley Marcus. Marcus, originally named a district judge by President Ronald Reagan and subsequently to his current appellate position by President Bill Clinton, drew a logical implication subtly different from Judge Sutton’s observation that the ACA mandate is not uniquely coercive, but one that is potentially even more troublesome for the ACA opponents’ case. “Isn’t that just another way,” he asked rhetorically:
“[O]f saying they [Congress] could have done what they did better? More efficaciously, more directly, and they regulated perhaps inefficaciously, maybe even foolishly, but if it’s rational, doesn’t my job stop at the water’s edge? Isn’t it for the legislative branch to make those kinds of calculations and determinations?”
No constitutional lawyer could mistake where Judge Marcus was heading. How is it possible, he was saying, for courts to dictate which of two methods Congress must choose to implement its constitutionally enumerated powers, when both methods generate “the exact same result?” Judicial micro-managing on such a granular level, Marcus knows, violates the fundamental, black-letter standard established nearly two centuries ago by Chief Justice John Marshall. In his iconic 1819 decision, McCulloch v. Maryland, Marshall broadly interpreted the constitutional grant of authority to Congress “to make all laws which shall be necessary and proper for carrying into execution” its enumerated powers: “Let the end be legitimate,” he wrote in words memorized by first-year law students, “let it be within the scope of the constitution, all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”
To be sure, no one who listened to this Eleventh Circuit argument could predict the panels’ outcome any more confidently than could those who heard the previous week’s Sixth Circuit argument. But these unequivocal statements, by two of conservativism’s most eminent legal luminaries, that the ACA individual mandate is not a unique threat to Americans’ liberty after all, surely drain much of the juice from opponents’ legal case, and, ultimately, from their political case as well.
By: Simon Lazarus, Public Policy Counsel to the National Senior Citizens Law Center, Guest Post, The New Republic, June 17, 2011
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