About two weeks ago, the Supreme Court ruled in favor of Monsanto, when it held that a farmer had violated their genetically modified soybean patent. In short, a farmer purchased genetically modified soybean seeds from Monsanto, subject to a licensing agreement which allowed him to plant the seeds for one season and one season only. Subsequently, the farmer engaged in a process that replicated the seeds, and was able to harvest and save some of his own genetically modified seeds for the next season. When Monsanto found out, they sued the farmer for infringement of their patent. In response, the farmer raised the patent exhaustion defense, arguing that, “the initial authorized sale of [the] patented item terminate[d] all patent rights to that item.” However, the Court disagreed, and concluded that this defense did not apply.
You might have expected this opinion to be written by Justice Thomas, considering his ties to Monsanto. But alas, the Court actually decided this one unanimously, in an opinion written by Justice Elena Kagan. Thus, even if Justice Thomas had recused himself from the case, the outcome would have been the same. Nonetheless, considering the possibility that other cases involving Monsanto could and may come before the Supreme Court at some point in the future, questions still remain about Justice Thomas’ conflict of interest and his ability to remain impartial. Moreover, although the US Code of Judicial Conduct, does not apply to Supreme Court justices, Justice Thomas’ unwillingness to recuse himself in cases involving his former employer, Monsanto, is surely cause for concern.
During the 1970’s, Justice Thomas was employed by Monsanto as a corporate lawyer. According to OpenSecrets, “Thomas has participated in at least one other case involving the company, Monsanto v. Geertson, which resulted in a favorable decision for Monsanto; Thomas joined the majority in that case.”
Accordingly, why doesn’t Justice Thomas have to recuse himself?
For starters, as I mentioned already, the US Code of Judicial Conduct does not apply to Supreme Court justices. The Code states very specifically:
“This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code.”
No mention of Supreme Court justices at all. Rather, Supreme Court justices are subject to Article Three of the Constitution, which states that, “judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.” A phrase which has been interpreted to mean that Supreme Court justices can be impeached; albeit only one ever has been, and he was subsequently acquitted by the Senate. Therefore, since Justice Thomas is not bound by the Code, he can pretty much do whatever he wants, since impeachment is highly unlikely.
But what if the Code did apply?
Well, Canon 2A of the code states, “A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The commentary following the canon further explains that:
“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety.”
As far as I’m concerned, reasonable minds (with knowledge of his former employment) would likely conclude that his impartiality and/or his fitness to serve as a judge would be impaired, were he to hear cases involving his former employer. His reluctance to recuse himself undermines public confidence, despite the fact he isn’t subject to the Code.
More importantly, were Supreme Court justices subject to the code, Canon 3C could possibly disqualify Justice Thomas altogether, depending on his personal biases and his knowledge of certain facts in relation to the matter before the Court. Canon 3C states:
“(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness.”
In closing, although it has been over 3 decades since Justice Thomas was employed by Monsanto, his close ties to the conglomerate surely leave many with doubts about his ability to be impartial. This is a potentially scary prospect, considering Monsanto’s past record of dirty deeds, and the various present day concerns about the company that come to mind.