American Bar Assn Journal:

U.S. Supreme Court

Law Prof: Entire Supreme Court Should Decide Recusal Due to Activist Wife

Posted Oct 28, 2010 6:00 AM CDT
By Debra Cassens Weiss

A Northwestern University law professor notes that Justice Clarence Thomas may find himself in a controversial position when the health-care reform issue reaches the U.S. Supreme Court, most likely in 2012.

Thomas’ wife, Virginia Thomas, is a leading opponent of health care reform legislation that passed this spring, law professor Steven Lubet notes in a Chicago Tribune opinion column. A memo briefly posted at the Liberty Central website founded by Virginia Thomas called the law unconstitutional, and it had Virginia Thomas’ signature. The memo was later taken down; the group’s chief operating officer explained that Virginia Thomas had neither seen nor signed the memo, and it should not have been posted.

Even so, Virginia Thomas’ well-known opposition to the legislation will raise recusal questions for her husband. Lubet notes that the decision whether to recuse may be made by Justice Thomas alone, but the professor questions whether that’s a good idea.

The issue of Thomas’ recusal will bring “vociferous demands that he step aside—countered by equally strenuous arguments that he remain in the case,” Lubet writes. “Partisan emotions will run high, with charges of bias and hypocrisy flying in both directions. In that fraught atmosphere, public confidence would be best served if the entire Supreme Court were to make the decision on Thomas' disqualification. It would be irresponsible to leave recusal completely to the discretion of the one man most likely to be swayed by competing considerations of duty and affection.”