Justice with Monsanto ties should recuse himself, environmentalists say

Oral arguments will be heard by the U.S. Supreme Court Tuesday in a case involving a federal judge’s temporary ban on a breed of genetically-modified alfalfa developed by Monsanto Co. One of the court’s justices, Stephen Breyer, has recused himself due to conflict of interest, and some environmental advocates are questioning if Justice Clarence Thomas, a former attorney for Monsanto, should also step aside.

Supreme Court Justice Clarence Thomas

The case, Monsanto Co. v. Geertson Seed Farms, is basically an appeal of two lower court rulings against Monsanto.

Monsanto wants the nation’s highest court to determine whether the lower court erred in three specific aspects of the National Environmental Policy Act when deciding the case. If the court sides with Monsanto, the threshold compelling government agencies to complete and publicly distribute environmental impact statements will be greatly reduced.

If the court sides with the respondents, government agencies will be put on notice that environmental law, as written, requires full public disclosure prior to deregulation of a product.

When the U.S. Supreme Court decided to hear the case, Justice Stephen Breyer recused himself due to the fact that his brother, Charles Breyer, was the judge who ruled in the originating decision. Advocates for maintaining, if not strengthening, environmental protection laws are quick to point to one other member of the court who should also consider stepping aside on the case: Justice Clarence Thomas.

Thomas, who was nominated by President George H.W. Bush and confirmed in 1991, has taken a share of criticism from such advocacy groups throughout his tenure on the court. Not only did Thomas work as an attorney for the Monsanto Co. in the late 1970s, he also penned the majority decision in a 2001 case that paved the way for companies like Monsanto to patent seeds. That same year he received the Francis Boyer Award established by chemical and pharmaceutical giant SmithKline Beecham, now known as GlaxoSmithKline.

Following release of the film “Food, Inc.,” which was highly critical of the nation’s “industrialized food system” and genetically-modified foods, Monsanto issued a statement specifically targeting the portion of the documentary that discussed Justice Clarence Thomas’ connection with their company.

“Clarence Thomas worked for Monsanto for a few years but has not been employed by Monsanto since the 1970s, long before the company was involved in biotechnology or owned a seed business,” reads the statement. “While Justice Thomas indeed wrote the majority opinion, this was a 6-2 decision. Justice Thomas was joined by Chief Justice Rehnquist, and Justices Scalia, Kennedy, Souter and Ginsberg — none of whom have or had any association with Monsanto. Justices Breyer and Stevens dissented, and Justice O’Connor did not participate in the decision.”

Since joining the court, Thomas has voted frequently with other conservatives, but has not been an automatic vote. In cases involving business, however, it is difficult to find a single instance where Thomas did not take a pro-business/deregulation stance. This is important because the heart of the Monsanto case before the court is whether or not court petitioners in cases involving environmental impact need to demonstrate a likelihood of irreparable harm in lieu of just a probability.

The court faced a similar question in 2008 during Winter v. Natural Resources Defense Council, and basically ruled that environmental impacts, if evident, were secondary to national security concerns. Thomas sided with the majority, agreeing that the U.S. military could continue to use sonar during training exercises off the California coast. Even without Thomas, however, the majority opinion would have prevailed — as is likely the outcome in Monsanto v. Geertson.

If the court expands its scope in the case beyond procedural questions related to environmental law and instead delves into specific areas of interest related to genetically-modified crops, there might be more calls for Thomas to step aside. Thomas no longer holds a financial interest in Monsanto, but his continuance as a party to the case is similar to the 1946 Jewell Ridge Coal case when Justice Hugo Black refused to recuse himself despite the fact that a former law partner argued for the prevailing side. Another justice in the case issued a statement following the case that Black’s decision was his own and that court did not endorse it.

In 1973 Justice William Rehnquist refused to recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, despite the fact that he had served as a White House lawyer who had supported the arrest program. And, in 2004, Justice Antonin Scalia also refused to recuse himself in a case involving then-Vice President Dick Cheney, despite the calls from many environmental groups that Scalia’s participation was improper.

The controversy over Thomas’ evident belief of conflict of interest also comes at a time when he is being publicly questioned for his wife’s continued political activities — most recently her embrace of the Tea Party movement.