Of Supreme Court Justices and Tea Bags

As the L.A. Times reported earlier this week, it seems Supreme Court Justice Clarence Thomas’s wife is a tea-bagger*. This has caused a fairly big stir . . . in the world of legal blogs (and at least a medium-sized stir in less dorky media). Frankly, I don’t see what the big deal is. I thought the whole point of allowing the Justices to have wives was so there would be someone around to throw the tea parties (and, of course, dinner parties and cocktail parties and other kinds of fancy Supreme Court Justice-y parties). Ok, fine, that’s not true. But it is the case that I’m not much bothered by Mrs. Thomas’s political involvement. I’m a big fan of people being able to have separate identities from their partners. What did bother me, though, was this line buried in the middle of the LAT article:

In 2000, while at the Heritage Foundation, she was recruiting staff for a possible George W. Bush administration as her husband was hearing the case that would decide the election.

The fact that Justice Thomas’s wife is as far right of the conservative nut-bar line as he is, no big deal. That she’s trying to convince others to join her in her nuttiness . . . that’s what democracy is all about. But the fact that Justice Thomas was deciding a case, in which his wife was working for one of the litigants?  Now that strikes me as a problem.  To be fair, Virginia Thomas was not working directly for Bush. On the other hand, it’s hard to say that recruiting his staff doesn’t count as working for him at all—at the very least, she was working on his behalf. Furthermore, I think it’s a safe bet that should her husband have decided the other way in Bush v. Gore, her recruitment services would no longer have been needed.

Do I think Justice Thomas would have decided for Gore were it not for his wife’s involvement in the pre-Bush administration? Well, no. This is the man who literally goes years without speaking from the bench, breaking his silence only when a majority of the Court has erred so gravely as to require the President to obey the law or, perhaps even worse, uphold abortion rights.

Still, the standard for recusal is not “Would you have voted that way, anyway?” And for good reason. Actually, lots of good reasons. The reason most often given for imposing upon judges a duty to recuse themselves whenever there is even an appearance of impropriety is that it helps to protect the legitimacy of the Court. But I think there is another reason, one Justice Thomas might want to think about the next time he’s called on to adjudicate a case between his wife’s almost-boss and some other guy who also wants to be president. The appearance of impropriety standard protects people like Virginia Thomas—spouses and other family members, and close friends of judges who want to have lives and careers and passions of their own. The less sure we are that judges will recuse themselves in cases of conflict, the more we’re likely to worry about—and want to limit—what those close to them are able to do.

* I desperately want to meet the brilliant Democratic operative who managed to convince some rabble-rousing Conservative-types that no, Conservative just wasn’t a strong enough brand; they should really go with something that had more of a founding-era flavor . . .  like, say, tea-baggers.