Congress Shall Make No Law...
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Justice Thomas Is Biased in Favor of Free Speech

More than a year after the U.S. Supreme Court’s ruling in Citizens United, attacks on that historic ruling just keep coming.  The latest comes from a group called, which has submitted a complaint (.pdf) to the D.C. Bar arguing that Justice Clarence Thomas should have recused himself from the case.


The reason? claims that Justice Thomas’ recusal was required under the Supreme Court’s recent ruling in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), because, in 1991, Citizens United spent $100,000 on ads independently urging the Senate to confirm Justice Thomas to the bench.


Put bluntly, this is crazy.


Caperton dealt with an elected justice of the West Virginia Supreme Court, whose campaign had benefited from millions of dollars in independent expenditures by a litigant who had a multi-million-dollar case on its way to the state supreme court within a matter of months.  The U.S. Supreme Court held that the elected judge should have recused himself, because the extraordinary events of that case created the “probability of actual bias.”


Even assuming that the reasoning of Caperton could apply to federal judges—who have life tenure and no incentive to repay favors—there is absolutely no way that Caperton would have required Justice Thomas to recuse in Citizens United.  The situation in Caperton was, in the Court’s words, “extreme by any measure,” and the ruling was “thus . . . confined to rare instances” that created the “probability of actual bias.”


Only someone with an ideological axe to grind could make the groundless accusation that Justice Thomas should have recused himself in Citizens United.  No intellectually honest person could believe that Thomas voted the way he did in Citizens United because, 20 years ago, Citizens United said nice things about him in a television ad.  And no intellectually honest person could believe that Thomas would have voted differently if the petitioner had been some other nonprofit, and not Citizens United.  Those who make claims to the contrary never really hope to win; their only goal is character assassination.  They and their empty efforts should be called out.


During Justice Thomas’ service on the Supreme Court, there have been 10 major campaign finance cases.  In every one of those cases, Justice Thomas has voted against regulation and in favor of free speech, often writing separately to explain why, in his opinion, the entire enterprise of campaign finance regulation is unconstitutional.


Justice Thomas’ unbroken voting record over 20 years shows only one bias, and that is in favor of free speech and the First Amendment.  We should applaud this bias in Justice Thomas and hope for as much in all our judges.