When a Justice’s Spouse Engages in Political Activity

When Mrs. Virginia Thomas, wife of Supreme Court justice Clarence Thomas, launched a new non-profit organization called Liberty Central earlier this spring, the announcement prompted a firestorm of media coverage. The Los Angeles Times, Washington Post, and numerous other news outlets ran stories discussing the possible ethical issues that may arise. The stories focused on two particular questions: to what extent may the spouses of Supreme Court justices engage in political activity, and when may Justice Thomas’s recusal be necessary if a donor to Liberty Central comes before the Court? Legal ethics experts quoted in the news stories offered brief answers on both counts.

In a short paper recently posted to SSRN, I have endeavored to provide a comprehensive answer to both of these questions. The first conclusion was straightforward: the relevant codes of judicial conduct are limited by their texts to judges – they have no power over spouses. Moreover, numerous advisory opinions confirm the right of judicial spouses to engage in politics. However, a judge must clearly separate himself from the political activity of his spouse.  Judicial recusal is governed by a federal statute. Going through the statute, and the advisory opinions and precedents concerning it, the paper identifies the relevant standard and proposes a framework for evaluating cases that may arise in this circumstance. I conclude that Mrs. Thomas can fully pursue her new organization’s mission without compromising Justice Thomas’s role on the bench.

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Limits to Life: SCOTUS Issues Decision in Graham

The Supreme Court finally issued its long-awaited decision in Graham v. Florida this morning.  And it turns out that the Eighth Amendment may not be so toothless after all: the Court held that sentencing a juvenile to life without parole for a nonhomicide crime violates the Cruel and Unusual Punishment Clause.  Graham received an LWOP sentence for a botched robbery at age sixteen.  The Court overturned Graham’s sentence, holding that states must at least “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” (24).  Thus, the Court did not preclude life sentences per se for juveniles, but rather focused on the availability of parole:

The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society. (24)

Graham breaks a string of defeats in the Court for Eighth Amendment challenges to prison terms.  Although the Court has been quite active in recent years in using the Eighth Amendment to regulate the death penalty, the Court had seemed uninterested in imposing limitations on the use of lesser sentences.  Of course, LWOP for a juvenile robbery is pretty extreme, so it would be premature to infer from Graham that the Court is going to get more involved in regulating long prison terms.

Not suprisingly, Justice Kennedy authored the majority opinion.  He has been the swing Justice in the Court’s recent Eighth Amendment cases, and there was little doubt that he was going to be part of the majority in Graham whichever way it came out.  Slightly more surprising is that Chief Justice Roberts concurred in the judgment, making the final vote 6-3 (instead of the more typical 5-4 in Eighth Amendment cases).  Based on this and a few other recent cases (for instance, with respect to jury-trial rights), it seems to me that Roberts is not as much an automatic vote against  defendants as his predecessor, Chief Justice Rehnquist.  It is also interesting to see the Justice Sotomayor voted with the majority, suggesting that she may adhere to the position of her predecessor (Justice Souter) in supporting robust Eighth Amendment rights.  Would a Justice Kagan do the same?  Justice Stevens was part of several tenuous majorities in this area, meaning that his replacement has the potential to bring about some major changes in the Court’s Eighth Amendment jurisprudence.

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The Constitutionality of Health Reform’s “Individual Mandate”

 

As noted in my blog post last week (“The Beginning of Health Reform“), pushback against the federal Patient Protection and Affordable Care Act was swift.  Members of nearly 40 state legislatures have proposed legislation or constitutional amendments limiting or opposing certain provisions of the Act, with most of the proposals targeting the Act’s requirement that individuals have health insurance coverage or subject themselves to financial penalties (the “individual mandate”).  Virginia, Idaho, and Utah are the only states thus far to have enacted new statutes (each of which more or less prohibits compliance with any law that imposes a fine on an individual for declining to enter into a contract for health insurance coverage), and their validity is sure to be challenged in court on Supremacy Clause and other grounds.  Idaho has also passed a non-binding resolution “urging Congress to take action forthwith to amend the United States Constitution by adding a Twenty-eighth Amendment to provide that Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizen who declines to purchase or participate in any health care insurance program.”

Most dramatic, though—if drama is measured by the amount of media coverage generated—is the lawsuit initiated by the Attorney General of Florida and joined by 19 other state Attorneys General maintaining that several components of the health reform law violate Article I of and the Tenth Amendment to the U.S. Constitution.  The argument that is drawing the most attention concerns the constitutionality of the Act’s individual mandate.  Like the contention at the heart of the state proposals, the Florida lawsuit argues that the Act’s requirement that individuals have health insurance coverage or pay a tax penalty amounts to an unconstitutional mandate that cannot be upheld under the Constitution’s Commerce or Spending Clauses.

The lawsuit seems unlikely to ultimately succeed, given the procedural and substantive hurdles it has to clear. 

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