© Josh Sager – July 2013

Supreme Court justices are exempt from oversight under the federal judicial code of conduct, and it is left up to them in order to self-regulate their recusal from cases. Ideally, justices identify any conflict of interest which may cause them to be biased while deciding a case (ex. financial conflicts of interest) and they voluntary recuse themselves from the case in order to prevent a biased ruling from being handed down.

Unfortunately, Justice Clarence Thomas has failed to conform to this code of conduct, particularly in regard to cases involving Monsanto Co. In the 1970s—from 1976 to 1979—Clarence Thomas worked as a corporate lawyer for the Monsanto Corporation, thus creating a serious conflict of interest for him when deciding any case involving Monsanto. While some on the right (including Monsanto) have argued that Monsanto was a chemical company without involvement in GMOs when Thomas worked there, thus there isn’t a conflict of interest, this simply is not the case; in any situation where a judge worked with, for, or against a plaintiff, there is a real conflict of interest.

Since his appointment to the Supreme Court, Justice Thomas has participated in several cases involving his previous employer—in none of these cases did he follow the judicial codes of conduct and recuse himself:

Monsanto Co. v. Geertson Seed Farms: In 2010, the Supreme Court decided a case that affected regulations on GMO “RoundUp Ready” alfalfa. The decision of this case was a 7-1 vote, in favor of Monsanto. Despite his obvious conflict of interest, Thomas did not recuse himself from this case. In contrast to Thomas, Justice Breyer recused himself from the Monsanto v. Geertson Seed Farms case because his brother, Charles Breyer, was the Federal judge whose decision was being appealed.

Bowman v. Monsanto Co.: In 2013, the Supreme Court decided a case which expanded the patent rights of GMO manufacturers to include naturally reproduced seed stock—this would prevent farmers from saving and naturally replicating Monsanto seeds as they would do with spare non-GMO seeds. While this decision was unanimous and Thomas’s vote was ultimately irrelevant, the fact that he refused to recuse himself in a case of such import involving his former employer is indicative of his pattern of disregarding conflicts of interest.

While there is no direct evidence supporting any continuing financial entanglements between Justice Thomas and Monsanto, there are several indirect connections which further increase the conflict when Thomas decides a case involving Monsanto (these connections are interesting but unnecessary, as the simple fact that he worked there is enough of a conflict to necessitate recusal).

Over the past few years, Justice Thomas has taken numerous expensive gifts and social engagements from groups which are extremely pro-agribusiness. In particular, Thomas’s acceptance of a $15,000 “gift” from the American Enterprise Institute and his speaking engagements in front of the Federalist Society present a conflict in regard to his deciding GMO cases. Both AEI and the Federalist Society consider themselves conservative “free-market” think-tanks, and have been virulently against increased regulations on GMO producers. As such, Thomas’s involvement with these groups creates a pressure for him to rule in favor of corporate interests—after all, if he were to vote against GMO producers, it is likely that he would no longer receive the money of AEI or the prestige of speaking in front of the Federalist Society.

Long story short, Supreme Court Justice Clarence Thomas is irreparably entangled with Monsanto—both in his past employment and his current affiliations—and he should automatically recuse himself if Monsanto has any involvement in a case. Unfortunately, Thomas has demonstrated a shocking lack of judicial ethics—he has taken numerous “gifts” from people with interests in his court, “forgot” to report his wife’s lobbying income for years, and has refused to recuse himself from cases, even when there were glaring conflicts of interest—and it doesn’t appear as though this will change any time soon. If he were on any other court in the land, Thomas’s ethical violations would have resulted in his removal from the bench, but the fact that he is a Supreme Court justice virtually immunizes him from oversight.

For the immediate future, it appears that Monsanto has at least one friend on the Supreme Court who will put aside judicial ethics in order rule in its favor.