Conflicts of interest in Bush v. Gore: Did some justices vote illegally?

This boils down to two separate but overlapping situations, either of which could exist even if the other did not. The first is the December 4, 2000, email to Congressional staffers, which Mrs. Thomas appears to have admitted to at least two reporters. Nearly all the press interpreted that email as an effort on behalf of the Bush team, although not necessarily one authorized by the Bush team. Mrs. Thomas and others associated with her or with Bush claimed that what she did was non-partisan-from which it necessarily follows that the Heritage Foundation would have offered the resumes to Gore if he had become president. (Although one might reasonably doubt the truthfulness of that claim, its truth or falsity does not matter much to recusal, as we shall see.)

The second situation is a broader one and would have existed even if she had never sent the December 4 email. She was and is employed by a conservative think-tank that collaborates with the Republican Party. And she was previously employed by a Republican leader in the House of Representatives. According to the Wall Street Journal, in that previous employment, "Ms. Thomas spearheaded a leadership effort to gather embarrassing information about the Clinton-Gore administration"156-whatever that might have entailed.

Mrs. Thomas claimed that she and Justice Thomas never (the "Chinese wall" statement)157 or "rarely"158 discuss his work at the Supreme Court-or even her work, either as an employee of the Heritage Foundation or, earlier, as an employee of a Republican leader in the House. As inherently incredible as this claim seems, its actual truth or falsity is not particularly relevant to recusal. Because any issue involving Mrs. Thomas would likely be resolved under [sec] 455(a)-which disqualifies a judge where "his impartiality might reasonably be questioned"-the law will assume that the Thomases discuss their work with each other if a disinterested lay observer would assume it.

Mrs. Thomas has therefore not created any conflict of interest that would disqualify Justice Thomas under [sec] 422(b). She was not a party to Bush v. Gore or an officer, director, or trustee of a party.159 She was not a lawyer160 or a witness in the lawsuit.161 The law does not consider her political activities to be proof that Justice Thomas had "a personal bias or prejudice concerning a party."162 She does not have "a financial interest in the subject matter in controversy."163 Nor does she have an interest "that could be substantially affected by the outcome of the proceeding."164

It is easy to imagine circumstances, however, in which a spouse's desires on how a case should be decided have been so openly expressed as to create an appearance of impartiality that would disqualify the judge under [sec] 455(a). The question here is whether Mrs. Thomas did that.