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Jonathan Turley’s Monarchical Absurdity

When I recently encountered an op-ed by Jonathan Turley, Turley was making the extravagant claim that Justice Scalia’s forthcoming speech on separation of powers at an event organized by the Tea Party Caucus of the House of Representatives and open to all members of Congress could “[a]t best … be viewed as a pep talk.” If Turley ever acknowledged that his claim turned out to be wildly wrong, I somehow missed it.

In yesterday’s Los Angeles Times, Turley’s excesses get the better of him again. This time he wildly claims that Justice Thomas’s recent remarks to a Federalist Society student symposium were somehow the equivalent of Louis XIV’s “L’Etat, c’est moi” proclamation, a “notorious merging of personality with an institution.” Here’s how Turley (evidently relying on a Politico report rather than his own observation) describes what he calls “Thomas’ Louis XIV moment”:

Thomas suggested that his critics [that is, critics of Thomas’s “alleged conflicts of interest and violation of federal disclosure rules”] were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were "focused on defending liberty." He added:

"You all are going to be, unfortunately, the recipients of the fallout from that — that there's going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties…. And that's long after I'm gone, and that could be either a short or a long time, but you're younger, and it's still going to be a necessity to protect the liberties that you enjoy now in this country."

It’s Turley, not Thomas, who is having the Louis XIV delusions. There shouldn’t be anything noteworthy about a claim that allegedly unfair criticism of an individual justice amounts to a broader attack on the Supreme Court as an institution or the entire judiciary. (For one recent example, see this Slate essay, which argues that recent criticisms of Justice O’Connor and other judges “show a troubling willingness to undermine the independent role of our courts.”) That’s a routine and reasonable part of political and legal discourse, and what most matters is whether the criticism being complained about is merited or not. (The Slate essay’s underlying complaint is unsound.)

In this regard, it’s striking that Turley finds “particularly alarming” Justice Thomas’s obviously inadvertent failure to have properly noted on his financial-disclosure forms a fact that was already publicly known: his wife’s employer. Turley contends that Thomas’s error “denied the court and the public the ability to fully evaluate [his supposed] conflicts at the time.” I can’t discern from Turley’s account a coherent picture of what those supposed conflicts were. (Turley asserts that Mrs. Thomas “was receiving money from groups [her different employers over time, I gather] that had expressed direct interest in the outcome of cases” before the Supreme Court, but I don’t know what he means by “expressed direct interest.”) Since the fact of Mrs. Thomas’s employment was widely known and publicly available, Turley’s claim that “the court and the public” were “denied” any relevant information seems farfetched. (A reader might also take from Turley’s account the mistaken understanding that Thomas was obligated to disclose the amount of Mrs. Thomas’s compensation, which was very much in the range of what you’d expect for someone of her seniority. He wasn’t.)

To be clear: The activities of a judge or of a judge’s spouse may well raise entirely legitimate concerns about recusal, and, not confident that I know the universe of specific facts that Turley may be referring to, I will refrain from offering any judgment on them.

Ed Whelan

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