In late March, 2012, the US Supreme Court will hear oral arguments about the constitutionality of The Patient Protection and Affordable Care Act (PPACA), "Obamacare". Some have claimed this is the case of the decade, or possibly even the case of the century. There are nine justices on the superior court. One of the pertinent questions is whether or not nine justices will hear these arguments? Two justices are receiving outside pressure from different political groups to exercise recusal from participation in hearing the PPACA case when it comes before the US Supreme Court. Justice Clarence Thomas, and Justice Elana Kagan are under scrutiny for apparent conflicts with participating in this case.
The argument for the recusal of Justice Thomas comes from his wife's work as a conservative lobbyist. Until recently, Virginia Thomas was the President of Liberty Central, a conservative organization that has worked to repeal health care reform. In a letter from seventy-four House Democrats, they expressed their concerns over a conflict of interest regarding Justice Thomas participation in a case about health care reform. They state that the federal law merits recusal due to a conflict of interest of this nature. If a spouse promotes herself as a lobbyist against health reform and a vote against health reform by her husband who happens to be a Justice on the Supreme Court at minimum suggests there is a conflict of interest. And so the question has been loudly asked, will Justice Thomas recuse himself from the PPACA court case?
And then there's the newest member of the court is Justice Elena Kagan, the most recent Obama appointment to the Supreme Court. Federal law requires any Supreme Court Justices to recuse from a case if they had earlier "participated as counsel" in the case. The idea is that an attorney cannot act as both the coach and the referee in the same game. A person is simply incapable of maintaining complete objectivity under these circumstances. Imagine being the defendant and the judge at the same time. There's NO WAY that the judge can remain impartial and objective, when they participated in developing the legal strategy and defense, and therefore, the only reasonable option for Elana Kagan is recusal. We know what she should do, now the question has shifted from what to do, to will she do the right thing?
Skeptics suggest that she will not recuse herself. They show past communications and emails in which she has implied that she will not remove herself from hearing this landmark case. So, what if she doesn't exercise impartial judgment and remove herself, can she be forced to not participate?
Title 28, Section 455, of the United States Code governs recusal of any court, stating that a judge shall recuse himself in any case in which the judge's impartiality might reasonably be questioned. However, Chief Justice John Roberts weighed in on the discussion with this opinion in the Year-End Report on the Federal Judiciary. He pointed out that there are unusual cases where a justice has a conflict of interest and their potential partiality is legitimately questioned, however, in the lower courts, there's always a higher court to render an opinion on recusal or conflict of issue matters. But, with the Supreme Court, there is now higher court to act as a policeman. Because no higher court is available to review recusal decisions with the Supreme Court, it does present a problem, and the justices must let their conscience be their guide with decisions of recusal. That said, there is another matter of equal importance, each justice has an obligation to hear a case, stating: "if a justice withdraws from a case, the Court must sit without full membership." A justice cannot withdraw from a case simply to avoid controversy.
Phrases like "jurists of exceptional integrity" fail to alleviate real concerns that simply because a justice has been appointed to the highest court in the land, they are above reproach. The public should have great concern regarding the US Supreme Court when matters of Conflicts of interest arise. If a death penalty case involving a relative of a US Supreme Court Justice was appealed to the high court, everyone would agree that the related justice must recuse himself from this specific case. Although health care reform is of less significance than a matter of life and death, the analogy is appropriate, as it shows there are situations that render a justice partial and bias, and therefore likely incapable of making an objective ruling. For John Roberts to not even acknowledge that the public's concern for the possibility of a lack of impartiality is legitimate and a real possibility in his sixteen page report, ironically speaks to an overall lack of partiality from the Court and a raises the question whether Chief Justice Roberts is out of touch with the public's overall perception of the court. A Gallup Poll in October 2011 revealed that the Court's approval had dropped to the second-lowest rating ever recorded, at 46 percent approval.
Although "we the people" have some legitimate concerns about the potential lack of impartiality of the Court, "we the people" also had grave concerns about the PPACA from the beginning, but that didn't matter anymore than our concern for partiality of the Court matters. And therefore, the court will continue to act politically, rather than remaining purely judicial, constitutional and just, and for these reasons, I suspect neither Justice Kagan's, nor Justice Thomas' "guiding conscience" will lead them down the path of recusal. And their inability to see a potential conflict of interest exposes the Court for what it has become, an extension of the legislative branch of government. This shift in purpose of the judicial branch of government certainly isn't unique to only the 2012 Court as history shows many past Supreme Courts have been more political than judicial, but history also tells us this was certainly not the intention of the founding fathers.
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