As the Supreme Court prepares to consider one of the most closely watched cases in its recent history, two of its nine justices -- one on the left and one on the right - -are being urged to step aside and let their colleagues determine the fate of President Obama’s healthcare overhaul without them.
Conservatives want Elena Kagan, the newest jurist on the court, off the case because of her ties to the Obama administration. Liberals would like to see Clarence Thomas to excuse himself because of his wife’s connection to advocacy groups that want the law overturned.
Neither side is likely to get its wish. Supreme Court justices pride themselves on their impartiality and rarely recuse themselves unless they have a direct financial stake in the outcome of a case. And the power to make that decision rests with each individual justice alone.
But that doesn’t mean either side won’t keep the pressure up. Last month, Senate Minority Leader Mitch McConnell and Charles Grassley, the ranking member of the Judiciary Committee, sent Atty. Gen. Eric Holder a letter demanding more information about Kagan’s involvement with the healthcare legislation while she served as U.S. solicitor general.
The bill was passed by Congress and signed into law in March 2010, while Kagan was still in the solicitor general's office, and was immediately under threat of constitutional attack in the courts. At the same time, Kagan became aware that Obama was considering her to replace Justice John Paul Stevens on the high court and has said that she began to scale back her involvement in ongoing matters in her office.
Kagan was nominated in May of that year. During her confirmation hearing, she testified that she played a minimal role in the Justice Department’s efforts to develop a litigation strategy to defend the law, known as the Patient Protection and the Affordable Care Act. But seizing upon documents obtained in a Freedom of Information Act request, Republicans contend she may have been more deeply involved than she let on.
Specifically, they point to several email chains that detail the administration's prep work for countering the parade of lawsuits then being filed across the country, emails that as late as March 21, 2010, carried Kagan’s name. Kagan also cheered the bill’s passage in an email to another Obama legal advisor, Laurence Tribe, the Harvard University law professor. “I hear they have the votes, Larry!!,” Kagan wrote. “Simply amazing.” She also has admitted to attending at least one meeting in which the litigation was discussed.
“The DOJ documents that have been made public show that Kagan was personally involved in advising how to defend against challenges to” the healthcare law, said Edward Whelan, president of the Ethics and Public Policy Center and a former clerk to Justice Antonin Scalia. “Federal law requires recusal when a judge previously served as a government lawyer on the matter.”
The Obama administration has insisted that it walled off Kagan from any deliberations on healthcare strategy, but Jonathan Turley, a law professor at George Washington University, said that’s part of the issue.
“The prior anticipation of this problem only magnifies the problem on one level. Kagan looks like a pocket justice - -someone selected from the president's inner circle to guarantee a vote on his most important legislative matter,” Turley said. “Yet, she appears intent on voting on the case given her prior participation in the case being accepted for review.”
Turley noted that Kagan has shown some sensitivity on the issue by recusing herself from other cases in which she played a part as solicitor general. That’s a contrast with Thomas, who seems less concerned, he argued, by the appearance of self-interest.
House Democrats have been calling for Thomas to step aside from the healthcare suit because his wife, Virginia Thomas, has worked for several conservative groups that have a stake in the outcome of the litigation. Thomas helped found one tea-party affiliate, Liberty Central, that has been a fierce opponent of the law.
Earlier this year, 74 Democrats sent a letter to Thomas asking him to recuse himself because of Ginni Thomas’ work as an advocate and lobbyist on the issue, citing as well Thomas' failure to report the sources of his wife’s income on annual disclosure forms.
Thomas, along with Scalia, was also recently criticized for attending a dinner sponsored by an organization of conservative lawyers that was sponsored by several law firms with an interest in the outcome of the healthcare fight.
The frisson over recusal has been generated not only because of the intense interest on the legality of the healthcare law’s individual mandate to buy health insurance, but also the expectation of a court likely to be divided along a 5-4 line. That means the exit of one justice could produce a deadlock.
The most recent row over recusal involved Scalia. He was asked in 2004 to step aside in a suit that sought the records of then Vice President Dick Cheney’s energy task force because of his long friendship with Cheney. The two recently had hunted together.
Scalia refused. "I do not believe my impartiality can reasonably be questioned," Scalia wrote in a memorandum. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined.”
When the decision was handed down, Scalia sided with Cheney in the dispute, writing a dissent along with Thomas saying the lawsuit against him should be dismissed.
Turley, the law professor, said both Kagan and Thomas should stand down, because any ruling involving either of them would taint the outcome.
"The appearance problems for both justices undermines the integrity of the court and the legitimacy of any final ruling in this historic case," he said. "They are responsible for those appearance problems and, in the interest of the court as an institution, should recuse themselves in my view."