Should Scalia and Thomas Be Retroactively Recused From Citizens United?

I just participated in a press conference (with Stanford Professor Deborah Rhode) dealing with Common Cause’s letter (below) asking the Justice Department to look into alleged conflicts of interest related to Justices Scalia and Thomas in the Citizens United case. Common Cause identified extremely serious issues related to the participation of Scalia and Thomas in events organized by Koch Industries CEO Charles Koch as well as Ginny Thomas’ involvement in Liberty Central.

Common Cause isolates the participation of both justices at these Koch events, which are advertised as seeking “to change the balance of power in Congress.” They are mentioned in promotional material with such conservative celebrities as Glenn Beck and Rush Limbaugh.

During the press conference, Common Cause confirmed that, in the separate years that they each attended the program, both listed their expenses as being paid for by the Federalist Society (and made no mention of the Koch brothers). They also detail the failure of Thomas to disclose the financial interests of his wife as well as the benefit that she received from the Citizen United decision.

Ben Smith has written that he believes that the timeline of Common Cause is erroneous on one issue: he says that his research shows that Scalia attended the Koch event shortly before the Citizens United case was filed and Thomas participated shortly after it was filed. That is clearly material to any ethical review and Smith’s research is important to consider. However, it does not address all of the issues raised in the letter or the more general problem with a lack of enforceable ethical rules for justices. Moreover, both justices should have been aware of the highly ideological and political tenor of these programs. I believe attending such meetings is, to use Thomas’ word for critics of the Court, “irresponsible.” How important do you believe the timing is in evaluating the ethical issues raised by the letter?

While the Judicial Code of Conduct, Canon 4 of the Judicial Code of Conduct states in part that a judge should not take part in any activities that “reflect adversely on the judge’s impartiality.” This canon specifically warns that “a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.” Canon 5 states that a “judge should not . . . make speeches for a political organization . . . or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate . . . A Judge should not engage in any other political activity.”

“Political organization” includes “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.”

Justices are subject to the conflict rules contained in 28 U.S.C. §455(a) which requires judges and justices to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b) includes various categories for recusal, including:

(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material
witness in the proceeding.

The problem is that Congress failed to include an enforcement provision in the law. The result is that it has been viewed at best as aspirational and at worse a nonsensical. Without any enforcement, the conflict controversies are left to the individual justice. This has created a situation that is anathema in a legal system: rules are are left to the accused to resolve with no appeal.

I honestly do not believe that either Thomas or Scalia were influenced by these events. Moreover, one can disagree with their participation and still not believe that the allegations support a recusal — let alone a retroactive recusal. My main interest in today’s conference call is to raise the continuing problem of a lack of binding rules and procedures for such conflict allegations.

Participation in events like the Koch programs show a lack of personal restraint and judgment. The increasing number of these controversies show the need for ethical reforms that bring the Supreme Court in line with the lower courts.

Scalia has made clear that he views these controversies as a problem with the media and critics — not him. In his conflicts memorandum following the dispute over the Cheney duck hunt, Scalia stated “[t]he people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.” For his part, Thomas has denounced criticism of the individual justices as “irresponsible.”

The Common Case letter asks for a finding of a conflict that would lead to the Court considering a request to vacate the decision. That is doubtful. First, civil libertarians have been trying for years to get Attorney General Holder to fulfill our treaty obligations to investigate torture allegations. If he is unwilling to enforce the Geneva Conventions, he is not going to enforce these matters of judicial ethics. Second, the Court itself does a poor job in policing its members or dealing with its past failings. When asked to reconsider United States v. Reynolds when documents proved the Air Force had lied to the Court, its members simply refused.

That frank assessment does not undermine the importance of this letter. The letter highlights the need for greater ethical standards and procedures for justices. These controversies show that they cannot or will not police their own members. These controversies do great damage to the integrity of the Court and the judiciary generally.

Here is the letter: Common Cause letter to DOJ re. Citizens United conflict 1.19.11 final signed

Jonathan Turley

58 thoughts on “Should Scalia and Thomas Be Retroactively Recused From Citizens United?

  1. I saw the article about the Common Cause letter. If these Supremes continue to fund raise for partisan political causes, would the violation of those Canons be enough to satisfy impeachment? Are accepting trips to these events from the Federalist society, who I would bet has filed amicus briefs with the court, another violation? I am tired of Scalia and Thoms just giving the public and judicial ethisc the proverbial middle finger. First the duck hunt mess and lately the fund raising events and Mrs. Thomas’ involvement in Citizens United.

  2. Paul L,
    being a former member of the ACLU does not preclude her from hearing cases brought by them if she did not have any contact with the case participants. The mere membership in the Federalist society isn’t the issue here. It is fund raising for the organizations and duck hunting with a current litigant that are the problems.

  3. “Should Scalia and Alito Be Retroactively Recused From Citizens United?”

    Not only yes, but Hell yes.

  4. I don’t have anything of substance to add, I just wanted to subscribe to the thread…

    I’m curious though, do the lawyers here think that this tactic has a chance of working? (I certainly hope so…)

  5. Slarti,

    Only if it prompts Congress to step in and do their jobs and uphold their Constitutional duty to protect the Constitution . . . a duty which includes protecting it from corrupt and compromised partisan Supreme Court Justices.

  6. Something has to slow this train of arrogance and KMA attitude that seem to ooze from people such as Scalia and Thomas.

  7. Buddha,

    I’m attempting to translate your response from ‘lawyer’ – do you mean ‘only if Congress impeaches the unethical SOBs’?

  8. C’mon, you mean you seriously didn’t think that America has the best justice, the best congress that money can buy?
    Thomas, Scalia and Alito are all partisans who put their political agenda above the law.

  9. Someday (hopefully sooner rather than later) “reasonable” conservatives will come slinking out of whatever hiding places they’re currently in – and give the current crop of hallucinating fools who are the face of conservative America a serious, reasonable, fact-based dressing down.

    When they do that, they can point out that setting this precedent for justices means that when the cultural pendulum swings back to the left in the US, those future far-left justices will be able to attend political strategy coordination meetings and rule from the bench accordingly….

  10. HELL YES.

    Ive already seen the effects of Citizens United on an election here in Arizona.

    Millions and million of dollars worth of terrifying commercials from anonymous donors. 24/7 for months. It was horrifying.

  11. I understand that Justices Scalia and Thomas are considering leaving the Supreme Court to become consulting judges on the proposed Fox News Network show, tentatively titled “String ‘Em Up!: Nancy Grace’s Kangaroo Court”.

  12. Yes, retroactively recused. They’re not only dirty but shameless and arrogant about it; should be unacceptable.

  13. Why has it taken so long for Common Cause to do this? My own experience with them is that they are basically an elitist goo-goo organization that is more about talk and letter writing than action.

  14. “(4) He knows that he, individually or as a fiduciary, or his
    spouse or minor child residing in his household, has a financial
    interest in the subject matter in controversy or in a party to
    the proceeding, or any other interest that could be substantially
    affected by the outcome of the proceeding;”

    Correct me if I’m wrong but wasn’t Scalia’s son working for Olsen’s law firm which represented Bush in 2000 and in light of the above doesn’t that in itself suggest the need to for him to have abstained from hearing the case, much less writing the opinion?

    Scalia’s tenure on the Court has been disgraceful and he deserves impeachment, though it will never happen.

  15. Not that the following is particularly pertinent to this thread, but…

    Perhaps you all can enlighten me. Any other judge in the country can be corrected by a higher court. These justices cannot because there is no higher court.

    Therefore, it would seem that they must either be barred from participating in any financial, political, or religious actions or must recuse themselves when any financial, political, or religious case comes before them with even the most tenuous of connections.

    The first seems to deny them every other citizen’s rights of freedom of voting, or owning assets, or of assembly.

    The second seems to make it possible that in some case, every justice might be affected at the same time (especially b.1.); thus the case could not be judged at all or would have to fall back to the lower court’s decision.

    Since the Supreme Court is an equal to the other two bodies of government, who is left to arbitrate a decision? If two bodies gang up on the third body, it seems the entire edifice is in danger of falling.

    Just pondering.

  16. Mike S./raff,

    That is very much the truth about Scalia’s son in re Bush v. Gore.

    Scalia didn’t just turn into a fascist scumbag over night.

    He was one already when Reagan appointed him.

  17. impeach scalia

    just tell thomas that anita hill is waiting for him in a closet. when he goes in lock the door after him.

  18. Citizens United should be vacated because of Scalia
    & Thomas bias & Alito / Roberts perjury @ their confirm. Hearings. Stare Decisis my ass!

  19. pete,

    “just tell thomas that anita hill is waiting for him in a closet. when he goes in lock the door after him.”

    Normally I’m not in favor of using a baited field, but in this case I’ll just have to say that’s a fine idea.

  20. I think we can all agree that there is no way in this world that either of these two will be removed from the bench for any reason. They could be filmed doing cocaine and underage hookers with people who have cases before the court and it would play out:
    RESPONSIBLE PEOPLE: This is unacceptable and these two must be impeached!
    DEMOCRATS: Lets start hearings of impeachment.
    DC PUNDITS: Why all this partisanship? Lets find a middle way, after all the cocktail parties I have been at with these two fine gentleman I’m sure this little mistake will not cloud their judgment.
    MSM: Oh look, shiny, Sarah Palin, sparkly, missing white women, balloon boy . . .huh, wha?
    HEADLINE: Today in a contentious session Congress narrowly avoided impeaching two USSC justices alone a party-line vote.

  21. Wow. And to think that Scalia had the chutzpah to claim his vote in Citizens United was based on textualism and originalism. Little did I know that Charles Koch had sneakily paid him off by giving money to the Federalist Society which in turn paid for his travel expenses when he spoke at the FedSoc lawyers convention. Figures.

    Koch to Scalia: You wanna keep those fancy hotel rooms on the road, don’t you? Better be a good boy and vote the way I want you to.

    The world’s gone to hell . . .

  22. Also, very impressive letter by Common Cause. I think someone used Orwell’s “Politics and the English Language” as a how-to guide.

  23. Raff/Buddha,
    Thanks for the confirmation. That fact and the total lack of outrage that followed it was for me the beginning of a true understanding of how little our “Democracy/Republic” is a real entity, rather than the Potemkin Village hiding our real masters, the wealthy and the corporations.

  24. Not that my kingdom is not offered to all as as reward if the faitful, they have chosen a different master to follow. We can’t all be as wonderful and species as one chooses. They have free will.

  25. With Justices like Scalia and Thomas, along with Roberts and Alito, I shudder to think what this country will be like in 10 – 20 years. How long before they rule that non-corporate “citizens” are really just serfs?

    I applaude Common Causes efforts. They may not prevail but it very well may have caused many to finally open their eyes as to the direction of SCOTUS.

  26. “the invited guests? Two of my favorite people–Jamie Dimon and Lloyd Blankfein”

    Obama makes me sad, but then it was naivete’ that invested him with beliefs that he obviously lacks.

  27. I had a relative that was a Supreme Court Justice during Roosevelt’s administrations, Wiley Rutledge,and the stories that I have of those days makes me long for something that could be close to their civil discourse. These fellows are certainly cut from a different cloth.

  28. I think they should have never been placed on this court to start with….start with that presumption…..W….a legacy to recall…..

  29. I did not know before this discussion that justices were allowed to accept gifts such as travel from third parties such as The Federalist Society is astonishing. How is this really different than permitting lobbying of the justices?

    Scalia says “the people must have confidence in the integrity of the Justices…” Well I do not have confidence in he, Thomas or Alito because of their arrogance and blatant behavior. While I would prefer to not single out these three conservative right wing justices in this regard, it is in fact their behavior that is undermining the reputation and confidence in the court.

    The absence of these same three at the State of the Union address further reinforces the idea that these justices make up a ideological, political cabal inside the highest court of our land, and rightfully undermines the faith in the judiciary.

    However I am grateful they have been acting in such a breathtaking arrogant fashion so we know who they are, that the court is broken beyond our wildest imagination, and that corrections need to be made. How long, if repaired, until the court regains the respect of the citizens, if ever, is an unknown.

  30. Antonin Scalia’s influence rests upon his ability to rhetorically appeal to substantive and/or contentious issues while also appealing to the smug self-assurance of ideological partisans. In most highly controversial cases, he presents an excellent partisan view — but is almost totally lacking in self-knowledge or judicial disinterest needed in a good judge. One has to search to find his casuistry [documented in my August 2010 blogs. On the whole his tenditious and ideological distortion of the Constitution’s mixture of idealism, practicality,and imperfection is now a permanent stain on the history of American {U.S.] jurisprudence.

    Lon Clay Hill

  31. Much as I hate to say it, the fact that Scalia’s son was merely associated w/ Olsen in Bush v. Gore isn’t sufficient grounds per the CJC for Scalia’s disqualification. The son must have been a “lawyer in the proceedings.” If he was adequately screened or otherwise not at all involved in the case, no conflict per CJC 3E(1)(d)(ii) and commentary thereto.

    But there are multiple grounds for Thomas, especially, to have been disqualified in Citizens United and whatever develops in the health care debate. Personal/familial economic/other interest, interest gleaned extrajudicially–the list goes on. The flouting of the Code undermines our belief in the impartiality of the administration of justice and that it is being done with abandon at the highest level of the federal judiciary is especially troubling.

    Moreover, Kagan’s involvement as a government lawyer prior to litigation is not grounds for removal per CJC 3E(1)(b)–she is not considered “associated” as she might in a private firm.

    Just studying for the MPRE here.

  32. If the standard is to disqualify oneself “in any proceeding in which one’s impartiality might reasonably be questioned” and “a judge should not take part in any activities that ‘reflect adversely on the judge’s impartiality'” one can argue that these tests have been met for Scalia with regard to connections with Olsen in Bush vs. Gore.

    That Kagan has recused herself in many cases perhaps using a standard of ‘appearance of bias or conflict of interest’ just shows how far each sits on opposite ends of the continuum, and the respect and reverence Kagan has for the institution and the system, and conversely the arrogance and disregard of the same by Scalia (and Thomas.)

  33. Steve K:

    I entirely agree that Kagan has set an exemplary standard, that necessary for a functional judiciary.

    But I doubt that these more nebulous standards (i.e., those subject to interpretation based on case law versus black letter law) can stand in the abstract for post hoc disqualification in Bush v. Gore. That case was already decided, albeit in a partisan manner (read: wrongly).

    But it does stand as a cautionary lesson that we all should take into account in terms of the health care debate. We have to mobilize, as law professionals (and those of us who aspire to be) to prevent this sort of thing in the future. I have suggested to Professor Turley that a petition from judges, lawyers, and other members of the ABA would be most persuasive–and is indeed required by the ABA Model Rules and the Code of Judicial Conduct in terms of reporting requirements of suspected impropriety. Those admitted to the bar have a duty to report misconduct in many situations, and even where misconduct is just reasonably suspected, there is a permissive standard by which such conduct can be reported.

    If Thomas persists in refusing to disqualify himself, impeachment is unlikely impossible given the current makeup of the House, but he could still be subject to discipline through a board of judges acting sua sponte. It’s a mere hope, but I think there are enough of us out there who can act to persuade the ABA/federal court system to act to prevent impropriety–or the appearance thereof–to be so blatantly espoused.

    Point blank: people will no longer respect courts if something is not done, and the future of our democracy will be further undermined.

  34. What we are really talking about is ‘guilting’ Thomas and Scalia to reform their oonduct as it relates to their partisan political activities and considerations of recusal as it might apply to conflict of interest or bias. With the history of these two justices available for review, this could lead one to reasonably presume that rather than reform their behavior, pressure from other judges, lawyers and the ABA would be something that merely reinforces their outlook – they seem to revel in and feed off this type of conflict and criticism.

    What about their interest in protecting their individual legacy? My personal view is any body of work either has developed was irrevocably befouled as a result of their vote and opinion in Bush vs. Gore – that their votes were nothing short of corruption, as evidenced by their taking opposite positions on the application of the Equal Protection Clause than they each exhibited during the previous ten years. It can be argued they forfeited their judicial legacy with this vote and that any legacy they wish to preserve is merely personal and ideological.

    I am not sure what the federal court system or ABA can do to rein in rouge Supreme Court Justices. At some point our government system cannot be governed by failsafe rules and checks and balances. We must at some point and to some degree rely on the character of the men and women who reach these pinnacles of power, who are put forward by other men and women to whom we have given our confidence by voting them into higher office.

    You are correct that people shall no longer respect the courts if something is not done. Justice Stevens’ dissent in Bush vs. Gore is telling.

    “It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

    Unfortunately Scalia and Thomas did not treat this instance merely as ‘limited to the present circumstances,’ but took the judicial tenor they breathtakingly helped establish in this case as merely the beginning of accelerated and ever more consistent questionable conduct.

    Where it ends we cannot know. But with a court of only nine justices, it does not take many bad actors to break an entire branch of our government. And in the process forfeit the trust of the People in this previously (mostly)venerable institution, whose confidence effectively provides its legitimacy.

  35. Steve K:

    The ego and hubris of Scalia is exactly why I am suggesting legal professionals get together to petition him and Thomas directly to get with it. His greatest interest is the perpetuation of his distorting legal theories (see Lon Hill’s great 1/29 comment above–sums it up). I think he will only be persuaded to get on the right side of ethics when those he perceives to be of a certain intellectual gravitas (i.e., those who appreciate his dogma) stand up and say he’s embarrassing the judicial branch. I am absolutely positive that there are some fair-minded Federalist Society members out there who are also outraged by this, and who would stand up and do the right thing (think Ted Olsen).

    As for Thomas–who knows? He hasn’t said a word in court for five years; I know more about his wife at this point than him. His violations are more blatant and technically easier to pin down, but he seems to be just following Scalia’s lead here.

  36. Jessica,
    I applaud your efforts to try to shame Jutice Scalia and Thomsa to follow judicial ethics, but I think you are spitting into the wind. Scalia is in his own world and if he can go on a hunting trip with Dick Cheney who was a litigant in a pending Supreme Court case at the time, he will stop at nothing. Thomas is just a follower who will follow Scalia 98% of the time. If he spoke and asked a question he might embarass himself.

  37. Raff,

    I’ve got to disagree with you – I think Jessica’s effort is both laudable and worthwhile even if it never effects Justices Scalia or Thomas at all. It is important to raise public awareness of the justices’ shameful behavior – even if the justices can’t be made to feel the shame they’ve brought on their offices, the more the legal community and the public in general is aware of it, the less chance there is of it happening in the future.


    You go girl!

  38. Slarts,
    I was not trying to dissuade Jessica and others from shining a light on Scalia and Thomas, I just don’t think it alone will impact on them at all. There is a bill being proposed by Rep. Murphy, I think, that will bring the Supreme Court under the same judicial ethics standards as every other judge. I don’t know if that bill makes it through the House, but maybe Jessica’s efforts can convince a few Congresspeople to so-sponsor the bill and help it get passed.

  39. Raff,

    I know. I was just trying to encourage Jessica – it isn’t ‘spitting into the wind’ if it impacts the views of Congresspeople (or even ordinary people). I’m on a ‘doing things’ kick right now and Jessica’s comments resonated with me…

    Now come Igor, back to the laBORatory… BWA-ha-ha-ha-ha!

  40. I do agree that a lawyers’ petition would have a limited effect for the reasons you’ve stated, but I still think it would be a good effort and possibly make these rogue justices reconsider their actions, especially if you can get a wide range of academics etc. involved. It would also, for the reasons cited above, that the legal community respects the rule of law and reinforce the need for reform.

    As for revising statute: I do understand the rationale for the revisions that now prohibit individuals from bringing complaints against Supreme Court justices–it would open the floodgates to every aggrieved habeas petitioner and would just not be feasible. What I’m not clear on, though, is whether the Committee on Judicial Conduct can, sua sponte or on the basis of the complaint of another judge, begin investigations. This is all I’ve been able to find: Does anyone know if the panel itself can take action through some other procedure that would include a complaint about the misconduct of a Supreme? The judiciary is largely self-policing, and apparently their opinions are kept confidential.

  41. Just to add that it would be a really, really sad day if a Supreme Court justice was actually impeached and it went to trial in the Senate: under the supervision of the Chief Justice! Argh. There is just no accountability.

  42. The pursuit of the effort in all its forms and venues should made, regardless of any clear enforceable path. We can not know where it could lead or what positive effect might result. The arguments need to be made, the facts documented and the discussion pursued, all in preparation for an alignment of of the stars that may or may not come.

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  44. […] Just a little bit on Scalia history, he was appointed by the Republican Bronze Idol himself, Ronald Reagan, in 1986, and his nomination came shortly after a highly contentious SCotUS confirmation hearing – thus he faced much less scrutiny than many other prospective SCotUS judges have. He has criticized his fellow Supreme Court judges before in highly hyperbolic fashion, calling colleagues who disagree with him “perverse” or “irrational.” He’s also had controversial cases where he’s refused to recuse himself, most notably in a two cases; the Sierra Club vs. a federal fossil fuel task force headed by Dick Cheney, Scalia’s duck-hunting partner, and the now infamous Citizen’s United case where he was a personal guest of billionaire Charles Koch who was a zealous vocal and monetary supporter of Citizen’s United. […]

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