Before the Supreme Court issues its ruling on the Patient Protection and Affordable Care Act cases (aka ObamaCare), I’d like to bring up something that’s been bothering me for months. This troubling issue transcends partisanship, I think, although it’s certainly pertinent to concerns about the Supreme Court’s politicization.
The first part of the issue is this: why is Clarence Thomas sitting on this case? Judge Thomas’s wife has been highly active with groups opposing ‘ObamaCare.’ She’s made a good deal of money (over $1.5 million dollars) from this advocacy. This is not a secret, nor is it an unsubstantiated allegation. It’s a matter of voluminous public record. In any other court, Judge Thomas would not be hearing this case.
The second part of the issue: should Elena Kagan be sitting on this case? The alleged problem here is that as U.S. Solicitor General, she helped prepare the government’s defense to the health care laws’ initial challenges. Kagan asserts that she delegated health-care related duties to the Deputy Solicitor General expressly to avoid conflict of interest. Her Supreme Court record indicates that she’s tried to be scrupulous about such conflicts, as she has recused herself from many other cases in which there was a possible intersection between her job as Solicitor General and her subsequent responsibilities as Supreme Court Justice.
Democratic Senators as well as various Progressive groups have called for Thomas’s recusal, while Conservative interests have called for Kagan’s recusal. So far (although recusal is possible any time until a ruling is published), both Justices have been actively involved in the Affordable Health Care cases.
So what, exactly, is recusal, and how does it work in our legal system in general and in the Supreme Court in particular?
Recusal is removing oneself, or being removed, from ruling on a case because one’s impartiality is compromised. In almost every federal and state court, recusal can happen in two ways.
The first and most common is self-recusal, when judges recuse themselves (sua sponte) from cases because there are obvious conflicts of interests – such as when a judge has been a party to the case previously, or has family members involved on one side or another, or has a substantial financial interest in the outcome. Even if judges believe they can rule impartially, they often recuse themselves to avoid the appearance of impropriety, which is what Federal Law and the Judicial Canon of Ethics demand.
The second way is recusal pursuant to a motion from the defense or the prosecution. This means that a party to the case believes that the judge cannot be impartial and petitions the court system to remove/replace that judge. Such motions certainly are not granted easily because there’s a presumption that judges are ethical people who will recuse themselves if necessary . . . and willy-nilly requested recusals would encourage ‘judge shopping.’ Nonetheless, they are granted as circumstances warrant – through various forms of judicial review – because there’s a legitimate need to maintain an unbiased judiciary . . . and to maintain the public trust in an unbiased judiciary.
In all courts except one, motions to recuse (if contested) can be heard on appeal by a higher court or handled by a writ of prohibition (different states and different federal courts have various means of dealing with motions for recusal). The exception: the Supreme Court, which has neither horizontally equal courts nor a higher court to which motions and appeals can be directed. Further, because of the nature of the Supreme Court, no equal-level judges can be brought in as substitutes to hear a particular case, something that can be done in lower-level courts.
So what happens when there’s a serious, ongoing recusal issue regarding a Supreme Court Justice?
Well, nothing. It’s recusal sua sponte or no recusal at all.
Throughout the Supreme Court’s history, Justices have recused themselves for all sorts of self-defined conflicts of interests, or perceptions of such conflicts. In the matter of the Affordable Care Act cases, neither Justice in question has recused him or herself. Why? My guess is that Supreme Court Justices probably have convinced themselves that they are indeed impartial, no matter what the circumstances. Or, to be more cynical, that they believe can get away with partisan rulings . . . damn the editorial or law review torpedoes, and full speed ahead.
Here’s what I don’t understand. Is there no remedy from a prima facie instance of Supreme Court bias, or at least a strong presumption of partiality?
In the matter of Justice Thomas (which, in my opinion, is by far the most blatant example of conflict of interest in the Affordable Care cases . . . indeed, a textbook case of conflict of interest), all sorts of ex parte pressures have been brought to bear. Democratic Senators sent a letter to the Supreme Court asking for his recusal; over 100,000 people signed a petition (and demonstrated in front of the Court) also asking for his recusal. Clarence Thomas would not be moved, and – obviously – neither the Chief Justice nor his (and Thomas’s) ideological allies pressured Justice Thomas to bow out from this aggregate of cases.
In the matter of Justice Kagan (which, in my opinion, is a much less obvious example of conflict of interest), the ex parte pressure extended to a formal motion to the Supreme Court for her recusal, a motion that was easy for Chief Justice John Roberts to turn down, both on the grounds that it doesn’t really have standing in law and that to grant it might open the floodgates to petitions for the recusal of Federalist Society brethren like Justice Thomas.
Indeed, the Chief Justice wrote in his year-end report (2011) that "I have complete confidence in the capability of my colleagues to determine when recusal is warranted.”
That sounds nice. But it ignores both the possibility that on occasion Justices may be blinded to (or seduced by) their own biases, or be so convinced of their own integrity that they lose sight of how their self-regard can effect public perception of the Supreme Court. This is not a minor matter: public trust in the Supreme Court – in its ability to transcend partisan politics – is at an all-time low. Congress’s reputation is already in the toilet; opinions of the Presidency as an office, not just as a function of a particular office-holder, are perilously polarized. If opinion about the third branch of government keeps sinking as well, where are we as a nation?
Unless the ultimate decision about the Affordable Care Act cases is made by a big majority (7-2? 8 -1?), its perceived legitimacy will be questioned in large part because of the failure of Justice Thomas to recuse himself, and in lesser part because of the failure of Justice Kagan to recuse herself. Even more, the issue will be sucked back into the vortex of partisan politics, as if there had been no Supreme Court decision at all . . . or perhaps more precisely, because the Supreme Court decision will be regarded as yet another unhappy exercise in partisan politics.
To conclude: at present, there seems to be no remedy against Supreme Court Justices who refuse to recuse themselves in the face of obvious conflicts of interest. If there’s not, there should be. At the least, a petition for recusal could be heard by the other eight members of the court, who’d have to rule (in a majority) for recusal. This would preserve the ‘supremacy’ of the Supreme Court in the country’s judicial hierarchy. It would also give some hope that justice can be balanced when it’s pretty apparent that a rough beast of bias is slouching toward the scales.
Joan Biscupic, “ Chief Justice Defends Supreme Court’s recusal policy,” USA Today, 12/31/11. http://www.usatoday.com/news/washington/story/2011-12-31/supreme-court-recusal-policy/52307886/1
Jennifer Haberkorn, “Supreme Court says no to debate over Elena Kagan health care role,” Politico, 1/23/12. http://www.politico.com/news/stories/0112/71819.html
“Justice Thomas Defends Wife’s Lobbying Work as Dems Call for Health Law Recusal,” FoxNews.com, 2/28/11.
“List of orders and filings related to the Patient Protection and Affordable Health Care laws”. http://www.supremecourt.gov/docket/PPAACA.aspx
Puja Patel, “Obama Care Recusal,” Cornell Journal of Law and Public Policy, 1/10/12. http://www.jlpp.org/2012/01/10/obamacare-recusal/
Caprice L. Roberts, “The Fox guarding the Henhouse? Recusal and the Procedural Void in the Court of Last Resort.” Rutgers Law Review 57, 2004. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=869257
Mike Sacks, “Clarence Thomas Petitioned by 100,000 Progressives to Recuse Himself From Health Care Cases,” The Huffington Post, 2/17/12. http://www.huffingtonpost.com/2012/02/17/clarence-thomas-petition-recuse-health-care_n_1284610.html
Jeffrey Toobin, “Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health care plan?” The New Yorker. 8/29/1. http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin
[Unrelated legal note: Roger Clemens was found not guilty of perjury yesterday (June 18, 2012). The charges involved lying to Congress about taking performance-enhancing drugs, something Clemens has never been convicted of. Enough, already, with wasting public money on Congressional inquiries like this . . . and weird, Catch-22 ensuing charges, the pursuit of which also wastes public money. ]