Bench Memos

Justice Stevens Sides with Justice Thomas

Justice Stevens recently joined a number of other high profile liberals who have thrown cold water on the argument that Justice Thomas should disqualify himself in the ObamaCare case on the basis that he once plugged his autobiography to people opposed to the law… or made a clerical error on his disclosure forms… or his wife has political opinions extending beyond cookie recipes… or whatever the flavor-of-the-day may be. In any event, according to the AP:

He also scoffed at the idea that justices have conflicts that influence their rulings. Some critics on the left say Justice Clarence Thomas should recuse himself from more cases because of his wife’s work in a tea party organization.

“I would say that I wouldn’t think there’s any possibility that any of the activities of Mrs. Thomas have had any impact on the analysis of Judge Thomas,” Stevens said. “He has definite views; he’s been consistent over the years.”

Justice Breyer was even more assertive, calling the Thomas flap a “false issue” and explaining that:

My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?”  “I can’t tell you how many times Sandra and I have been asked to go to conferences,” Breyer told the crowd. “One [was] to the Navajo Reservation, and a lot of them don’t have the money. And so it becomes and issue of how are you going to pay for that? We say, go to a foundation and get the money, OK? I don’t see anything wrong with that. And I will continue to do it.  

Meanwhile, we still hear very little about the fact that Justice Kagan pulled the ObamaCare case into the Solicitor General’s office, tasked her only political deputy with covering it, and, according to e-mails and documents that have been released via FOIA request, received privileged information from those strategizing for the law’s constitutional defense.

A dose of consistency would be welcome in the recusal discussions.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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