A judge in Florida ruled this week that the entire Affordable Care Act is unconstitutional. According to political scientist and Supreme court-watcher Scott Lemieux, that's probably not the end of the world for health care reform:
"Despite this, this ruling is less important than the controversy it will generate might suggest. Many cornerstone programs of the New Deal were held unconstitutional by lower courts before being upheld by the Supreme Court. This ruling tells us nothing we didn't already know: there is a faction of conservative judges who believe the individual mandate is unconstitutional. Unless this view has the support of five members of the Supreme Court -- which I still consider very unlikely -- it won't matter, [Judge] Vinson's reasoning would have a much greater impact if adopted by the Court, but for this reason is even less likely to be adopted by higher courts." [TAPPED]
However, if the case comes before the Supreme Court, Justice Clarence Thomas should recuse himself. Thomas failed to report $686,589 that his lawfully wedded wife, Ginni Thomas, earned at the conservative Heritage Foundation between 2003 and 2007. Like all federal judges, Thomas is required by law to disclose his wife's income.
Just look at these heterosexuals, debasing the institution of marriage! Do Justice and Mrs. Thomas not realize that they have been united as one, for financial as well as procreative purposes?
"It wasn't a miscalculation; he simply omitted his wife's source of income for six years, which is a rather dramatic omission," [NYU law professor and judicial ethics expert Stephen] Gillers told the LA Times. "It could not have been an oversight."
Thomas filed amended disclosures after he got caught by the watchdog group Common Cause, but as far as I can tell, he has not apologized nor has he suffered any consequences. He insist it was all a 6-year, $686,589 oversight.
The Heritage Foundation is one of the most prominent opponents of health care reform on the national scene. In December, the Heritage Foundation's anti-reform blog, Fix Healthcare Policy, trumpeted Judge Vinson's refusal to dismiss the lawsuit as "A Legal Victory on the Road to Repeal." According to a Heritage web memo, "[The individual mandate] Is an Unconstitutional Violation of Personal Liberty and Strikes at the Heart of American Federalism."
A Supreme Court Justice who failed to report over half a million dollars in spousal income from a leading repeal group should not rule on the constitutionality of health care reform.
The issue is not that Mrs. Thomas worked for the Heritage Foundation. That is her right as a citizen. Wives are not their husbands' property. They don't forfeit their rights to work or to be politically active just because their husbands hold positions of influence. However, their income must be disclosed so that the public can be assured that adequate safeguards are in place to prevent conflicts of interest.
The issue is that Justice Thomas was apparently willing to break the law in order to hide his wife's ties to the group. If he was so keen to erase that connection, he must have thought it would look bad. Indeed, it does, now that he's been caught trying to conceal it.
Justice must be seen to be done as well as be done. Thomas has tacitly admitted by his underhanded actions that he thinks that justice couldn't be seen to be done if his wife was earning hundreds of thousands of dollars from a conservative activist group that lobbies on multiple issues before the Supreme Court.
The Heritage Foundation has so many interests before the Supreme Court that this pesky $686,589 is going to come up again and again. There's no telling how many cases will be overshadowed by Thomas's illegal and unethical behavior.
He should just resign.