Clarence Thomas Versus Barack Obama -- Not

The blogosphere and much of the professional media as well have been reporting that Justice Clarence Thomas referred the case seeking to have President-elect Obama disqualified to the full Supreme Court out of spite or pique. I suppose it's theoretically possible that is true, but there does not appear to be any actual evidence for this view. In fact, the record is quite to the contrary.

As required, the petition for a stay of judgment pending the filing of a certiorari petition in Donofrio v. Wells was originally filed with the Third Circuit Justice, i.e., Justice Souter. He denied the stay. Then, as permitted by Supreme Court Rule 22 (full rules here), the petitioner himself got to pick which Justice to ask for a second opinion. According to the docket sheet, Donofrio chose Justice Thomas. Justice Thomas at that point had three options: 1) He could grant the stay; 2) he could deny the stay; or 3) he could refer the stay application to the full Court. He chose option 3.

"Aha!" say the conspiracy theorists. This shows that Justice Thomas is in league with the likes of Alan Keyes and others on the far right who are trying to deny President-elect Obama the fruits of his victory. In this view, by choosing option 3 over option 2, Thomas manifested his disdain for Obama.


Supreme Court Rule 22 allows a petitioner to take a shot at a second Justice and then Rule 23 gives him a shot at the full Court. If Justice Thomas had chosen simply to deny the stay (option 2), Donofrio likely would have returned with a stay application to the full Court. (28 U.S.C. sec. 2101(f) appears to authorize only an individual Justice--and not the full Court--to grant a stay in such a case, but the All Writs Act, 28 U.S.C. sec. 1651, would allow the full Court to grant a stay in the truly extraordinary case where two Justices first turned the application down erroneously.) By referring the matter to the full Court himself, Justice Thomas got the case finally denied more swiftly than if he had simply denied the stay himself. There is simply no reason to think that Justice Thomas was hoping the full Court would grant the case, as he neither voted to grant the stay himself (option 1) nor wrote a dissent from the full Court's denial of the stay application.

Perhaps the journalists and bloggers touting the Clarence-Thomas-is-out-to-get-Barack-Obama story have inside information they're not revealing, but I very much doubt that. Bottom Line: This is a non-event.

Posted by Mike Dorf