06.29.11

Supremes on Defense

Justice Stephen Breyer and retired Justice Sandra Day O’Connor joined forces at the Aspen Ideas Festival to back up embattled colleague Clarence Thomas—and the 5-4 decision that handed George W. Bush the presidency in 2000.

Blood is thicker than water, and membership on the Supreme Court apparently trumps ideology and politics when it comes to defending an embattled colleague.

So it seemed on Wednesday at the Aspen Ideas Festival, where Associate Justice Stephen Breyer, a former Ted Kennedy staffer and Bill Clinton appointee, offered what sounded like a ringing defense of arch-conservative Associate Justice Clarence Thomas, who has come under fire recently from House Democrats, Common Cause, and other critics for sitting on cases in which his wife, a paid lobbyist and right-wing activist, has an interest in the outcome.

“This is a false issue,” Breyer said in response to an audience member who posed a hypothetical case loosely fitting Thomas’ situation. “As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be.”

Breyer was appearing with retired Associate Justice Sandra Day O’Connor, who offered her own impassioned defense—of the Bush v. Gore decision that decided the 2000 presidential election—in a panel discussion of whether the high court is politically influenced. Both justices said it’s not, and Breyer’s hardly veiled defense of Thomas seemed in some ways to confirm their assertion.

According to Justice Thomas’ most recent public-disclosure form, his wife, Ginni, earned $686,589 between 2003 and 2007 from the Heritage Foundation, a right-wing think tank and advocacy group. She also has ties to Tea Party and other organizations that are trying to repeal President Obama’s health-care law, an issue likely to come before the high court. In February, 74 House Democrats, notably led by now-disgraced Rep. Anthony Weiner of New York, demanded that the justice remove himself from deciding any such case because of a potential ethical conflict.

“It wasn’t the end of the world,” O’Connor said of Bush v. Gore. “When it went back in favor of Bush, all of the ballots were safe... It did not change the outcome at all. So forget it, OK? It’s over!”

On Wednesday, Breyer suggested that this could be a very bad idea. Noting that federal judges in lower courts are bound by explicit guidelines that Supreme Court justices are not obliged to follow, Breyer said, “The Supreme Court is different in one respect. In every other court, if I decided in a close matter to recuse myself, that’s the easy decision. That’s one fewer case I have to decide, and besides, they’ll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result.”

Breyer went on, “My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?”

Breyer also obliquely addressed two other Thomas-related issues—that he attended a policy retreat paid for by the conservative Koch Foundation, and that he failed to disclose his wife’s income for several years until he belatedly issued a corrected statement.

“I can’t tell you how many times Sandra and I have been asked to go to conferences,” Breyer told the crowd. “One [was] to the Navajo Reservation, and a lot of them don’t have the money. And so it becomes and issue of how are you going to pay for that? We say, go to a foundation and get the money, OK? I don’t see anything wrong with that. And I will continue to do it.”

Breyer seemed to feel his colleague Thomas’ pain for all the negative publicity he generated after filing the corrected disclosure form. Breyer pointed out that he, like the other justices, must file a “disclosure form every year… I have to disclose every penny that I earn or have as an asset, or that my wife earns or has as an asset, or that any minor children earn or have as an asset, and it costs quite a lot of money to pay accountants to do all that perfectly—because you know if there’s one thing wrong, there’s going to be a headline.”

Breyer added: “There are a lot of things in this world that are actually a lot tougher when you look at them through the microscope, case by case, and understand the duty to sit, as well as the duty to recuse, and the independence of two members of a family who are married…. The cases you’re thinking of might not be so easy.”

Meanwhile, O’Connor, who stepped down from the court in 2006, gave her most detailed public comment yet on the 5-4 decision that made George W. Bush president of the United States and Vice President Al Gore the loser who won the popular vote nationwide.

“It was a federal election of a president carried out at the state level, and in this case it was Florida,” O’Connor said, noting that the state had no uniform policy for instructing “the little volunteers,” as she called them, on how to count disputed ballots in four counties “out of machines that they had never used before for voting, which left hanging chads.” O’Connor went on, “Some were hanging by three-quarters… and there were no instructions on how to deal with the hanging chads.”

The Supreme Court initially sent the case back to the Florida court to come up with instructions, “and the Florida court did not respond,” O’Connor said. “It never acted and they never instructed” the vote counters. O’Connor, a moderate Republican Reagan appointee, was, as usual, the pivotal vote in the 5-4 decision, among the most contentious in Supreme Court history.

“It wasn’t the end of the world,” O’Connor said, though some may disagree with her. “When it went back in favor of Bush, all of the ballots were safe—all of them in the four counties, and the press had access to them, and they had recounts by the press in the four counties. It did not change the outcome at all. So forget it, OK? It’s over!”