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The Conflict of Interest between Justice Thomas and Monsanto Should Concern Us All

Image from "A Sheep No More"

Image from “A Sheep No More”

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.

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Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!

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  • Goatmama

    How do we change this ? Many of the people involved with the 5/25 world wide Occupy Monsanto rally were well aware of Clarence Thomas’s ties to Monsanto, as we are about Michael Taylor of the FDA. But what can we DO about it? In particular, as a DES daughter I am very concerned about the issue of GMOs, a lack of labeling, and pernicious corporate involvement in the food system. Corporate reach is so extensive that none of the media had the courage to cover the rally last week.

    • Ilyssa

      Honestly and unfortunately, we can’t do much. Supreme Court justices are isolated from public opinion and from the code of ethics. We could petition the House to impeach but it’s out only real option.

      • Dissenter13

        They can be removed pursuant to a writ of scire facias. All that need be shown is that they had violated the only condition the constitution imposes on their employment.

      • Ilyssa

        Incorrect the write of scire facias has been abolished under federal law

      • Dissenter13a

        The writ was technically abolished–as was the writ of mandamus, FRCP 82(b)–but if you read the Rule, you would know that relief in the nature of scire facias can be had. All the Rule did was abolish technical pleading requirements.

        Obviously, you spend more time writing than litigating.

      • Ilyssa

        I am going to attempt to respond to all of your comments on this post in one concise comment. 1) I spend plenty of time litigating,but 90% of what I litigate are criminal cases in federal and state court so as far as I was concerned a writ of scire facias had been abolished in federal court, however, since you point it out, I will go have a look at FRCP 82(b), Either way, there is no need for you to be condescending. I am perfectly willing to admit that I am wrong on something when someone points it out but you can do so without coming off as a douche. 2) You are talking about the dissent in Blyew, keyword dissent – which means it has no force of law. Even if you personally believe that we should have the right to personally prosecute people under our 10A rights, the fact is, that is just not how the system works anywhere in this country. If you think it should be changed, lobby to have it changed, but don’t claim it exists when it doesn’t or very rarely happens. 3) I think we both agree that Scalia and Thomas are bought and paid for. Nonetheless if you want to sue someone in a court of law in America, you need to allege a cause of action or your case will get dismissed pursuant to FRCP 12(b)(6) – failure to state a case or a cause of action – and you could be subject to fines for bringing a frivolous suit under FRCP 11 depending on what you alleged. 4) Even if his role at Monsanto was that of a tax lawyer, that doesn’t mean he wasn’t privy to information about other things. I work at a law office and am privy to many other pieces of info about certain things which fall outside of my articulated practice area. If you notice in the article I am careful to say that whether he should recuse is completely based on the information he was privy to. I never assert that he was privy to information that would force his recusal, I merely raise the possibility. 5) Finally, I think we both agree he has been over the line on many cases that involve his wife’s political activities, Bush v. Gore being on example.

      • Dissenter13

        You came off more than slightly arrogant and snotty yourself, Counselor. Treat people well, and you will be treated well.

        First, when is the last time you asked a judge for “relief in the nature of mandamus”? You ask the judge for a mandamus, and s/he knows what you mean. Ditto, the scire facias. I posted a lengthy piece on its history and application to Article III that seems to have disappeared. A textualist like Scalia has to concede my point.

        Second, Scalia observed in dictum not long ago that the matter of whether the common-law right to initiate private criminal prosecutions still exists has not been decided. It is, as Justice Bradley noted in dissent, an essential bulwark of liberty that no free person would willingly relinquish:

        “[I]t is a right, an inestimable right, that of invoking the penalties of the law upon those who criminally or feloniously attack our persons or our property. Civil society has deprived us of the natural right of avenging ourselves, but it has preserved to us all the more jealously the right of bringing the offender to justice. …

        To deprive a whole class of the community of this right, to refuse their evidence and their sworn complaints, is to brand them with a badge of slavery; is to expose them to wanton insults and fiendish assaults; is to leave their lives, their families, and their property unprotected by law. It gives unrestricted license and impunity to vindictive outlaws and felons to rush upon these helpless people and kill and slay them at will, as was done in this case.”

        Blyew v. United States, 80 U.S. 581, 598-99 (1871) (Bradley, J., dissenting). We all know why Blyew was decided as it was–the word starts with “N” and is not uttered in polite company–but the rationale of the dissent stands on its own. If you are a textualist like Scalia, you have to concede the point. [continued]

      • Dissenter13

        Third, with respect to Thomas’s time at Monsanto, the “Chinese wall” principle applies. if Justice Kagan could hear Obamacare because the WH “kept her out of the loop,” Thomas could have heard Monsanto, because he would have been out of the loop almost by definition, as tax law is its own insular specialty. As a tax guy, I know this at first-hand.

        Fourth, the most egregious abuse I can think of was the Scalian failure to recuse in the FOIA lawsuit against his good friend Dick Cheney, where he admitted facts that would have justified a bribery prosecution. While CT is often over that line, our robed imperial masters have been drawing outside the line for decades. Monsanto doesn’t even deserve to be on the radar screen, by comparison.

        As for Rule 11 sanctions, if a matter has never been litigated, they don’t apply by definition. Besides, in a legal system where the highest and best use of the Bill of Rights is as toilet paper, and the United States Reports is scarcely a polite suggestion, how can you impose sanctions for a frivolous lawsuit? After all, as Plessy was settled law, you could argue that Brown v. Board was frivolous on its face. [cont]

      • Dissenter13

        Any serious student of judicature has seen this rodeo before. Much as every Catholic priest is a child sexual assault case just waiting to happen, every federal judge is a serial felony just waiting to happen. When judges don’t like a statute, they simply interpret it out of existence, or when they can’t do that, they indulge in fabrication of fact. Professor Karl Llewellyn writes that judges routinely

        “manhandl[e] … the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.”

        Karl Llewellyn, The Common Law Tradition: Deciding Appeals 133 (1960); accord, Richard A. Posner, How Judges Think 144 (Harv. U. Press 2008).

        It happens so consistently that no one can credibly suggest that it is an accident. The sainted Judge Richard Posner, whom Justice Kagan lauded as the “the most important legal thinker of our time,” Elena Kagan, Richard Posner, the Judge, 120 Harv. L. Rev. 1121, 1121 (2007), uses this analogy to explain the often-grotesque battlefield triage we find in America’s federal courts. Admitting the patently obvious, Posner asserts that judges frequently take indecent liberties with both facts and precedent, in an often-transparent effort to hide the fact that they are not so much interpreting the law as they are writing it to suit their personal preferences. Posner, How Judges Think at 144. They “are constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent”—a process he colorfully characterizes as “fig-leafing.” Id. at 350. At the end of the day, even judges admit that fellow judges are professional sociopaths.

        Whenever we talk “law,” we should talk “the personal preferences of our rulers.” The rule of law died long ago, murdered by Scamuel Chase in Callender.

      • CryingFreeM

        Well you cannot do much if you still think within the current legal boundaries…. and you will always be behind since those legal boundaries are made by/for these corporations.

  • William Trefethen

    I am bewildered by the lack of an attorney/firm who would bring a class action lawsuit naming Monsanto, Congress, the Supreme Court and the President on a civil damages case for attempted/premeditated murder against the entire population. Fear of being assassinated possibly?

    • Ilyssa

      You are crossing both the criminal system and the civil system. The only entity that can bring a case for attempted/premeditated murder is the government itself, a private citizen has no right to action in a criminal case. A private citizen only has a right to action in a civil case and it would be necessary for them to have a legitimate cause of action (a legal reason to sue) in order for them to bring the suit in the first place. It’s much more complicated than that. Just giving a simple response.

      • William Trefethen

        You might want to ask how private citizens collected over $295 million from PG&E for contamination of their drinking water. We need an Erin-like go-getter NOT someone who gives up before the fight starts. That might make a difference.

      • Ilyssa

        Through a civil suit that’s how. There was a cause of action available under the Clean Water & Air Act. But, I’m with you. We need to go after them anyway we can. It still doesn’t help that their buddy is on the Supreme Court

      • Dissenter13a

        You mean, Harlan Crow’s “house N***** (ask Malcolm X if you don’t know)? Ironically, one of the de facto bribes he received was Frederick Douglass’s Bible.

        Scalia and Thomas are bought-and-paid for.

      • Dissenter13

        And where does the Constitution say that? Back in the days of the Founding, private criminal prosecution was ubiquitous. The right to prosecute is the right to protect yourself. See Blyew v. US.

      • Ilyssa

        Private prosecution no longer exists. Blyew has been antiquated for many decades now.

      • Dissenter13a

        The dissent in Blyew shows the need for private criminal prosecution. In every other Western country, you can either prosecute yourself or force the authorities to do so. I maintain that it is one of the rights retained by the people pursuant to the 10Am because it is essential to the preservation of liberty.

    • Michael M

      That is a very good question.

  • Wes Falls

    Firstly, if they were beholden to that code of conduct, they would not be Supreme. Second, being a Supreme Justice is the highest evidence a person can actually achieve as proof of proper conduct. Reasonable minds would understand that a possibility for something to happen is not good enough of a reason to act as if it already had, or definitely will. Particularly when regarding someone who adds “Supreme Justice” to describe what they do for a living. You may as well accuse him of being compromised because he’s a minority, too.

  • SiriusMahn

    Our system is based upon a presumption of innocence. I am not found of Justice Thomas for many reasons, but the make the claim that because over 30 years ago he worked for a company for 2 1/2 years that he is automatically biased is not a conclusion for reasonable minds. Nor does the author provide any direct information and his “close ties to the conglomerate,” only leaving that for a unsupported claim at the very end. For this reasonable mind it is a pre determined bias searching for a rationale.

    The sheep no more photo is equally deceptive. It does not mention that it was 35 years ago. It is wrong in the number of years he was with Monsanto per his bio, it does not mention that it was two cases, and that in the second the decision was unanimous so his decision was the same as the other 8 members of the bench. Nor does that, or this article mention that in the other Monsanto case the vote was 7 to 1, with only Justice Steven dissenting. In neither case did he cast a deciding vote.

    As I said, I don’t like the man, his politics or views, but I am not going to string him up based on a 30+ year old association.

    • Ilyssa

      I did provide a link to the close ties. It’s a hyperlink. All of the sources are cited. You need to dig a little deeper. Also, I pointed out that the decision was unanimous and covered all the things you mentioned? Did you even read the article before you wrote this comment? It would appear you did not. And certainly one can have ties with an organization they worked for years ago. Many people remain in close contact with former employers and are privy to information. For example, the most recent case involved RoundUp. RoundUp was developed during the 70s. Who was the lawyer on the case during the 70s? Thomas. So don’t give me that too much time has passed. bs.

      • Dissenter13a

        What was his role at Monsanto, Ilyssa? If you read his wretched autobiography, you would know that Thomas was a TAX lawyer. Tax law is specialized; he would have had zero involvement in RoundUp litigation.

        Under Thurgood Marshall’s rules for recusal, he would be able to sit in that case. In other cases, it is a lot closer call due to his wife Ginni’s political activities. Bush v. Gore was clearly over the line.

  • Bine646

    Japan just blocked import of wheat (from oregon) bc it was found to be gmo- caused other nations to do so aswell. Wheat price dropped around 2 bucks. This is one way to beat them and germany found another. Maybe if the govt wasnt lobbying for monsanto with tax dollars we could solve the problem here

  • AL JONES

    WE NEED TERM LIMITS FOR THESE GUYS TOO

  • lovespherepoet

    That decision was unanimous, but it was limited specifically to that case. The farmer involved had a contract with Monsanto, and deliberately broke it. The big problem is that the modified DNA is being spread by natural cross-pollination.It may soon affect all of that crop, taking us out of the export market.

  • Dissenter13

    Why are my comments being moderated? Viewpoint-based discrimination?

  • SS1

    You attorneys are acting like contentious whiny clowns. Really? You can’t even be civil with each other. I pity your clients. Grow up…the lot of you.

  • Richard Levine

    look deep into the history of Monsanto and you will see politicians from both sides of the aisle in their back pocket. Perhaps if Forward Progressives were that concerned about the safety of the food supply as they are about free birth control then you wouldn’t be so quick to cheer on BHO who had former Monsanto executive Mike Taylor at the head of FDAs food safety, or Hillary Clinton who supposedly represented Monsanto when she practiced law.

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  • James Young

    It’s hard to believe you’re an attorney, because you’re either an unregenerate ideologue, and/or an idiot. So every Justice employed by the Federal government at one time or another should recuse themselves when the government is a party? How about Justice Ginsburg, every time a feminist organization is a party?

    The fact is, this was a straight intellectual property/licensing case. If “questions still remain about Justice Thomas’ conflict of interest and his ability to remain impartial,” they remain only in the fevered imaginations of the far Left. A far Left which seems incapable of finding or applying an objective criteria other than “F*** corporations and anyone who ever dares to associate with them.”

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  • Monab

    Monsanto background, not recusing from cases, wife involved in tea party movement & the inappropriate attendance of Koch Brothers retreats along with Rush Limbaugh & Glenn Beck should be enough to have him removed from office shouldn’t it?

  • Steve

    Witch hunt – The unanimous decision by the court emphasizes the flawed logic of your argument … when do liberal and consrvatives on the Supreme Court ever unanimously agree on anything – and it was Kagan who wrote the decision. You won’t get me to drink your kool-aid.

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  • Mary Kay

    Kind of like Justice Kagan who should have recused herself from the Obamacare case, and did not.

  • Ben

    This article is begging and straining and didn’t need to be written!

  • Andrew Troutner

    The article doesn’t mention Elena Kagan’s ties with Monsanto because obama nominated her and this is a “progressive” website? I guess all you progressives just ignore the fact that obama nominated Roger Beachy, Ramona Romero, and Tom Vilsack to the USDA, Michael Taylor to the FDA, and Islam Siddiqui as the Agriculture Trade Representative also.. all monsanto/biotech shills.. How can you all support obama and believe he cares about humanity if you educate yourselves about the things that he does?

  • Kevin Carroll

    Does Thomas have any current ties to monsanto? I’ll bet the hacks at FP can’t supply one shred of evidence that he does. Liberals are such dishonest and hypocritical fools.

  • Bobbie_Z

    Forward thinking for ridiculous lies and distortion.

  • Christopher D

    I am a sixth generation farmer. I own land that has been in my family for 150 years. On the land we have grown tobacco, corn, peas, soybeans, peanuts, watermelons, etc…. If you were to walk around this land you would see all of those crops have left behind seeds. These seeds turn into what I know as “volunteers”. Volunteers are like weeds, you do not have to plant them, they are always going to come up because a crop that is harvested will always leave behind seeds. As the years go by, genetically modified seeds begin to pollute crops and they become an irreversible infestation. Monsanto knows of this and hires lawyers to twist the laws to work against the farmers. So, whether Thomas was or was not a part of this hearing, the out come would have truly been the same. Thomas was essential in helping Monsanto create the views of the courts before he even became a Supreme Court Justice.

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