Dispatches from the Creation Wars

Should Thomas Recuse Himself?

The Iowa Independent notes a controversy over Justice Clarence Thomas and his ties to Monsanto, which is party to a case the Supreme Court heard on Tuesday.

Oral arguments will be heard by the U.S. Supreme Court Tuesday in a case involving a federal judge’s temporary ban on a breed of pesticide-resistant alfalfa developed by Monsanto Co. One of the court’s justices, Stephen Breyer, has recused himself due to conflict of interest, and some environmental advocates are questioning if Justice Clarence Thomas, a former attorney for Monsanto, should also step aside.

More details:

When the U.S. Supreme Court decided to hear the case, Justice Stephen Breyer recused himself due to the fact that his brother, Charles Breyer, was the judge who ruled in the originating decision. Advocates for maintaining, if not strengthening, environmental protection laws are quick to point to one other member of the court who should also consider stepping aside on the case: Justice Clarence Thomas.

Thomas, who was nominated by President George H.W. Bush and confirmed in 1991, has taken a share of criticism from such advocacy groups throughout his tenure on the court. Not only did Thomas work as an attorney for the Monsanto Co. in the late 1970s, he also penned the majority decision in a 2001 case that paved the way for companies like Monsanto to patent seeds. That same year he received the Francis Boyer Award established by chemical and pharmaceutical giant SmithKline Beecham, now known as GlaxoSmithKline.

The fact that he wrote a previous ruling that helped Monsanto is irrelevant; if a justice could not hear a case if he had previously ruled on any related case, there would be a lot of 2-1 decisions on the court. But the fact that he was once a lawyer for Monsanto could be grounds for recusal. I’d like to hear what judicial ethicists have to say about it.

It is up to each justice, by rule, to decide whether to recuse themselves in any case. This is not always the case at the state level. Michigan just adopted a new set of recusal rules in the wake of the Caperton ruling, but it is not clear that those rules would require recusal in a case like this. The fact that he was an attorney for the company more than 30 years ago probably mitigates the situation a bit.

Some state recusal rules say that a justice should recuse himself if someone could reasonably conclude that he would not be impartial in adjudicating the case. Some allow other justices to vote on whether a colleague must recuse themselves if challenged.

I think in this case I would say that his association with Monsanto was so long ago that it would not reasonably affect his impartiality. I also think it was unnecessary for Breyer to recuse himself. His brother is a federal judge; that does not mean he should not hear cases his brother previously ruled on.