Supreme Court and Conflicts of Interest: Pressure Builds for More Transparency

United States Supreme Court Justice Clarence Thomas just passed his fifth anniversary of silence during oral argument before the Court. During that time, he has not asked a single question of a single lawyer in a single case. And no one may force him to do so.

But there is growing political and legal pressure on the justice, and the high court itself, to end a different kind of official silence; about conflicts of interest and the reasons why the justices recuse themselves (or, more pointedly, don't) from certain cases.

Last month, the public accountability group Common Cause asked the Justice Department to investigate whether Thomas and Justice Antonin Scalia should have recused themselves from last year's landmark Citizens United campaign finance case because of perceived ties to conservative groups. And next week, a Democratic lawmaker plans to introduce federal legislation that seeks to require the justices to be more transparent about their decisions to sit, or not sit, on a particular case.

This means that representatives of both of the other branches of government will be poking their collective noses into the business of the judiciary, and the Supreme Court itself, over ethical protocols that have traditionally been left to the justices to self-regulate. The Justice Department theoretically has the power to "enforce" (exactly how is unclear) a federal statute that requires judges to disqualify themselves from any proceeding in which their impartiality "might reasonably be questioned." And Congress holds the power of the judiciary's purse, a point Chief Justice John Roberts made clear he understood in his last "state of the judiciary" remarks seven weeks ago.

The issue continues to roil through legal and political circles, in Washington especially, largely as a result of the work of Common Cause. Last month, an investigation by the group revealed that Thomas had improperly filled out his financial disclosure forms for decades by leaving out significant income earned from political advocacy work by his wife, Virginia, the conservative activist. Thomas and Scalia also have been linked to David and Charles Koch, the conservative billionaire brothers, who have been forceful partisans on the political scene. Last week, reported the Washington Post, 74 Democratic members of the House of Representatives called for Thomas to recuse himself from any Supreme Court review of the Patient Protection and Affordable Care Act of 2010.

If Thomas is chastened by the growing questions about his impartiality and the appearance of conflicts of interest, he's surely not showing it. Earlier this week, Common Cause pressed the Court for more consistent answers about Thomas' ties to the Federalist Society, a conservative group that evidently hosted him at one of its retreats in 2008. Next week, however, the justice is scheduled to speak to the Federalist Society Student Symposium at the University of Virginia. It is unclear whether this event will be open to the media. Such speeches to student groups are common during the course of a Supreme Court term.

The topic of conflicts at the Court is not new. The last time it came up with this force was in 2004 after Scalia's famous duck hunting trip with then-Vice President Dick Cheney. At the time, questions were raised about whether Scalia should subsequently consider an appeal from Cheney's office of a court order requiring him to release information about his energy policy task force. Scalia did hear that case (and voted in Cheney's favor) -- but only after issuing an unusual and lengthy "response" to his critics. Scalia wrote bluntly: "Even so, recusal is the course I must take -- and will take -- when, on the basis of established principles and practices, I have said or done something which requires that course."

At the time, Chief Justice William Rehnquist essentially ended the political debate on the topic by defending both the integrity of his colleague and the need for a measure of judicial independence from endless partisan questions about the impartiality of the court's decision-making. "There is no formal procedure for court review of the decision of a justice in an individual case," Rehnquist wrote to Senate leaders. "That is so because it has long been settled that each justice must decide such a question for himself." Seven years later, that's a question the justices, and especially Justice Clarence Thomas, may be forced to confront again.