Last week, the New York Times reported that Justice Clarence Thomas received a series of lavish gifts and other favors from a leading Republican donor, including $500,000 to allow Thomas’s wife to start a Tea Party group and a $19,000 Bible that belonged to Frederick Douglass. Additionally, Thomas received a gift worth $15,000 from the American Enterprise Institute, a conservative think tank that often files briefs in Justice Thomas’ Court. Justice Thomas did not recuse himself from at least three cases where AEI filed a brief.

Rather than acknowledge this ethical scandal — a scandal which is striking similar to the gifting scandal that forced Justice Abe Fortas to resign from the Court in 1969 — the GOP has decided to throw up a smokescreen. In a transparent attempt to distract from the very serious allegations against Justice Thomas, forty-nine GOP lawmakers signed a letter to the House Judiciary Committee leadership seeking an probe into utterly frivolous ethical allegations against Justice Elena Kagan:

Forty-nine Republican members of Congress on Thursday asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law, saying her prior work in the Obama administration should disqualify her from considering any challenge to the law before the high court. . . .

According to the law, they said, a justice should recuse in cases “where he has served in government employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.

First of all, there is absolutely, positively no case whatsoever supporting Kagan’s recusal from the Affordable Care Act cases. To have “participated” in a “particular case in controversy,” a judge must have been a lawyer, adviser or witness in the exact same lawsuit that is now before their court. Because none of the health care cases currently pending in federal court had been appealed before Kagan was confirmed to the Supreme Court, Kagan would not have done any work on those specific cases. Normally, the Solicitor General first becomes involved in federal litigation at the appellate level, if at all.

Second, the letter effectively accuses a sitting Supreme Court justice of perjury despite no evidence supporting that allegation. Kagan testified under oath during her confirmation hearing that she had no involvement whatsoever in the health care litigation. If the GOP actually has evidence that Justice Kagan is a felon, then they should produce it. Otherwise they should avoid making libelous accusations without proof.

Third, a hearing on Kagan wouldn’t even be the first time right-wing activists launched an unsuccessful witch hunt on this very issue. Earlier this year, a conservative news outlet filed a FOIA request seeking documents relating to Kagan’s involvement in the health care litigation. After examining the documents, National Review writer Carrie Severino, a former law clerk to Justice Thomas, was forced to conclude that the documents contain no evidence requiring Justice Kagan’s recusal.

Here’s what’s actually going on here: last week, Rep. Chris Murphy (D-CT) circulated a draft letter to his colleagues seeking an hearing on the many ethics scandals surrounding Justice Thomas and two of his conservative colleagues. The next day, he pointed out that Republicans won’t speak out against Thomas because “he’s doing their bidding on the Supreme Court today, and they don’t want to do anything that compromises his ability to enforce a political agenda in the United States judicial system.”

The GOP’s silence on Thomas is as unfortunate as it is predictable, but their baseless attacks on Kagan are particularly underhanded. Forty-nine Members of Congress just suggested that a Supreme Court justice committed a serious felony, and they appear to have made this accusation solely to distract from the massive ethics scandal plaguing one of their allies on the Supreme Court.

Yesterday’s decision rejecting a challenge to the Affordable Care Act was objectively the most important decision on this question to date. It was the first court of appeals decision to consider the issue, and the first case in which a judge crossed party lines — George W. Bush appointee Judge Jeffrey Sutton provided the key vote rejecting the plaintiffs’ claim.

Nevertheless, as Steve Benen demonstrates, major media outlets continue to treat pro-Affordable Care Act decisions as far less important than anti-Affordable Care Act decisions:

Washington Post
* 6th Circuit ruling (upholding the ACA): article on page A5, 1053 words
* Steeh ruling (upholding the ACA): article on page A2, 607 words
* Moon ruling (upholding the ACA): article on page B5, 507 words
* Hudson ruling (against the ACA): article on page A1, 1624 words
* Vinson ruling (against the ACA): article on page A1, 1176 words
* Kessler ruling (upholding the ACA): no article, zero words

New York Times
* 6th Circuit ruling (upholding the ACA): article on page A15, 853 words
* Steeh ruling (upholding the ACA): article on page A15, 416 words
* Moon ruling (upholding the ACA): article on page A24, 335 words
* Hudson ruling (against the ACA): article on page A1, 1320 words
* Vinson ruling (against the ACA): article on page A1, 1192 words
* Kessler ruling (upholding the ACA): article on page A14, 488 words

Associated Press
* 6th Circuit ruling (upholding the ACA): one piece, 832 words
* Steeh ruling (upholding the ACA): one piece, 474 words
* Moon ruling (upholding the ACA): one piece, 375 words
* Hudson ruling (against the ACA): one piece, 915 words
* Vinson ruling (against the ACA): one piece, 1164 words
* Kessler ruling (upholding the ACA): one piece, 595 words

Politico
* 6th Circuit ruling (upholding the ACA): one piece, 940 words
* Steeh ruling (upholding the ACA): one piece, 830 words
* Moon ruling (upholding the ACA): one piece, 535 words
* Hudson ruling (against the ACA): three pieces, 2734 words
* Vinson ruling (against the ACA): four pieces, 3437 words
* Kessler ruling (upholding the ACA): one piece, 702 words

Indeed, coverage of anti-ACA decisions has so overwhelmed coverage of the pro-ACA decisions that all but one outlet has published more total words on the former — despite the fact that twice as many courts have supported the law as have struck it down:

As Benen explains, “The news-consuming public doesn’t necessarily follow the details of these legal developments, and Americans find important what the media tells them is important. With that in mind, it seems very likely the public has been left with the impression that the health care law is legally dubious and struggling badly in the courts because that’s what news organizations have told them to believe — rulings the right likes get trumpeted; rulings the left likes get downplayed.”

The Affordable Care Act’s supporters are jubilant after yesterday’s decision rejecting a challenge to the law, and rightfully so. Former Scalia clerk Judge Jeffery Sutton’s total rejection of the plaintiffs’ legal theory is as good a sign as can be imagined that the case against the ACA will only convince a handful of outlier judges.

One of those judges was the dissenting member of the panel, District Judge James Graham, and Graham proved himself to be quite the outlier. At the conclusion of his opinion, Graham openly admitted that he was picking and choosing which Supreme Court cases he wanted to follow:

In Lopez the Supreme Court recognized that the direction of its existing Commerce Clause jurisprudence threatened the principle of a federal government of defined and limited powers, and it began the process of developing a new jurisprudence more compatible with the Constitution. That process was interrupted by Raich, where a majority of the Court was unwilling to expressly overrule a landmark Commere [sic] Clause case in Wickard, which had been the law of the land for over sixty years.

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

Lopez and Raich are two matching bookends surrounding Congress’ ability to regulate interstate commerce. Lopez struck down a federal law banning the act of bringing a firearm into a school zone on the grounds that the law had no connection to either economic matters or to activity that crosses state lines. Raich upheld part of a comprehensive economic regulation of illegal drugs. Taken together, the two cases stand for the proposition that nationwide economic regulation fits comfortably within Congress’ authority, while wholly local and non-economic regulations are far more constitutionally suspect.

Judge Graham apparently feels like Lopez set the nation on a positive path towards deregulation, and Raich wrongly “interrupted” our trip down that path, but this is an entirely inappropriate statement for a lower court judge to make in a legal opinion. Raich is binding precedent no less than Lopez, and judges are simply not allowed to pick and choose which laws they want to follow.

Lest there is any doubt that this is what Judge Graham is up to, the remainder of his opinion leaves no question that he has no intention of following Raich. Graham cites to Justice O’Connor’s dissent in Raich four different times — even though a dissenting opinion is, by definition, a view that departs from the controlling law that judges are required to follow. At one point, he even rejects one of DOJ’s arguments because it is inconsistent with an opinion Justice Thomas wrote that was joined by no other justice:

The government fails to show why a view of cost-shifting caused by risky conduct should fare any better. The problem with the government’s line of reasoning here is that it has no logical end point, and it illustrates precisely Justice Thomas’s concerns with the substantial effects test. See Morrison, 529 U.S. at 627 (Thomas, J., concurring) (calling the test “rootless and malleable”).

Judges are simply not allowed to ignore the views of eight Supreme Court justices because they’d rather follow the outlier view of just one. And the Thomas opinion Graham relies upon here is a particularly strange one to cite favorably. The “substantial effects test” is the constitutional doctrine which, among other things, allows Congress to prevent a barbecue restaurant in Alabama from only serving white patrons. Taken to it’s logical end, Thomas’ assault on this substantial effects test endangers the nationwide ban on whites-only lunch counters.

Simply put, Judge Graham’s job is to follow the law whether he likes it or not. He failed miserably at that basic task yesterday.