In a recent blog post, former Secretary of Labor Robert Reich, who currently chairs Common Cause, wildly attacks Justice Thomas and Justice Scalia for supposedly politicizing the Supreme Court. Reich’s primary target is the Citizens United campaign-finance ruling; Reich concludes his post with this assertion: “Citizens United is an illegitimate decision, arrived at by at least two justices who should never have participated in it.”
Let’s take a sober look at Reich’s claims:
1. Reich writes: “Before the decision [in Citizens United], Thomas and Scalia also participated in a political retreat hosted by Tea Party billionaire financiers Charles and David Koch, driving forces behind loosening restrictions on big money in politics.”
According to the account (at the end of this article) provided by Supreme Court spokeswoman Kathy Arberg:
Scalia spoke about international law at a Federalist Society dinner sponsored by Charles and Elizabeth Koch in January 2007 “and did not attend the separate political and strategy meeting hosted by the Kochs.”
One year later, in January 2008, Thomas spoke about his autobiography at a similar Federalist Society dinner sponsored by Charles and Elizabeth Koch. Thomas then made “a brief drop-by” at “one of the separate Koch meeting sessions” but “was not a participant.”
If Reich believes that the Supreme Court spokeswoman’s account is incorrect, it would be good of him to say so and explain why.
According to the Supreme Court’s own timeline, the request for Supreme Court review (the “statement as to jurisdiction”) in Citizens United was filed in August 2008, and the Court granted review (noted “probable jurisdiction”) in November 2008.
So Reich’s claim that Thomas and Scalia “participated in a political retreat” hosted by the Kochs strains those terms to recast their speeches on legal topics as somehow amounting to political participation. And his observation that they did so “before the decision” in Citizens United obscures that they did so even before the case was pending at the Court.
Update: Someone who has been a major player in the battle against campaign-finance restrictions writes me to dispute Reich’s assertion that the Kochs were “driving forces behind loosening restrictions on big money in politics”: “I think I know a thing or two about it, and the Kochs have had nothing to do with this fight. I wish they did. We could use the money.” So that would make the asserted link between the Kochs and the Citizens United case even more farfetched.
2. Reich writes:
Back in 1991 when Thomas was nominated to the Supreme Court, Citizens United spent $100,000 to support his nomination. The in-kind contribution presumably should have been disclosed by Thomas.
All sorts of groups spend money for (and against) Supreme Court nominees. Is Reich seriously contending that justices are required to report support as in-kind contributions? What, he might tell us, is the source of his assertion that such support “presumably should have been disclosed”? Has any justice ever reported support for a nomination as an in-kind contribution?
And if a group’s spending money in support of a nominee requires (as Reich seems to be arguing, though perhaps I’m too charitable in trying to discern a principle) that a justice forever recuse from cases involving that group, why shouldn’t the same be the case for a group that spends money in opposition to a nominee? What a great way to disqualify a justice you don’t like! Too bad there’s zero precedent for it.
Despite the fact that he is blogging, Reich doesn’t bother to link to support for his factual assertion. Wonder why? Well, it turns out (according to this 1991 Time article) that the in-kind support was in the form of ads attacking Democratic senators—ads that the White House demanded be pulled and that Thomas denounced as “vicious.” (A minor note that goes only to Reich’s carelessness: Reich also appears to be wrong about the amount that Citizens United spent: the reported “cost of about $100,000” for the ads was shared between the Conservative Victory Committee and Citizens United.)
3. Reich states that “you’d think that, given his connections with Citizen’s [sic] United and with the Koch brothers, Thomas would have recused himself from the Citizens United decision in order to avoid the appearance of a conflict of interest.” But once the facts are fairly presented, there is no plausible case for recusal.