For months there have been repeated calls from Supreme Court watchers for Justices Clarence Thomas and Elena Kagan to recuse themselves from the healthcare litigation to be argued before the court in March. The controversy heightened in December when Chief Justice John G. Roberts Jr., in his year-end report, argued that not only should Supreme Court justices decide recusal issues solely for themselves, but that some ethical rules that apply to all other federal judges should not bind the justices.
Although the chief did not name any particular justice, there was no mistaking his implicit defense of Kagan's and Thomas' decisions (at least so far) not to recuse. In January, the court did nothing to quell the controversy when it unanimously (without Kagan participating), and with no comment, denied a formal motion by a conservative organization that the court hear arguments over whether Kagan should recuse herself from the Affordable Care Act litigation.
The reasons for the suggested recusals are well known. Thomas' wife spent significant time and effort, and earned a great deal of money, lobbying against the act. Kagan was the solicitor general of the United States when the act was enacted, celebrated its passage over email with professor Laurence Tribe of Harvard Law School (at the time a legal advisor to the Obama administration) and was aware that her office was involved in the litigation strategy defending the law.
The federal statute that does apply to the justices requires recusal if their "impartiality might reasonably be questioned" or they "participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."
I am not going to discuss in detail Thomas' recusal issues, for two reasons. First, unless new facts come to light, the case for his recusal is weaker than Kagan's. It may set an unfortunate precedent for a justice to have to recuse just because his or her spouse is involved in the issue (at least absent evidence the couple has a current financial stake in the outcome of the case). Second, and sadly, I don't expect much from Thomas given his history. At his confirmation hearings, he made the dubious and startling claim that he could not remember, nor did he "personally engage in," a single discussion of Roe vs. Wade (decided 18 years earlier) before that hearing. Add in his consistent, multi-year failure to disclose the sources of his wife's income as federally required, his now six-year silent pout during oral arguments (he hasn't asked a single question), not to mention the Anita Hill allegations, and I would never hold up Thomas as a model of judicial behavior.
If these words appear harsh, it should be remembered that much worse things are being said by journalists and commentators about Newt Gingrich, Mitt Romney and President Obama, among other national political figures, and there is no good reason to immunize Supreme Court justices from similar criticism.
But Roberts and Kagan are a much different matter when it comes to their behavior on the recusal issue. Was Kagan a "counselor or advisor" on the constitutionality of the healthcare act for the administration? This is a substantial question because even though Kagan may not have been directly involved in the administration's litigation strategy defending the act while she was the head of the solicitor general's office, her deputy, Neal Katyal, was. It exalts form over substance to suggest that Katyal, had he been named to the Supreme Court, would have to recuse himself but his boss, who knew of and supported his participation, does not.
But, even that isn't the point. The litigation is likely to be the highest-profile Supreme Court case since Bush vs. Gore. The court has set the argument for 5½ hours over three days, which is almost unheard of in modern times, and the decision may factor into the presidential election. Yet Roberts tells us just to trust Supreme Court justices to do the right thing, and Kagan doesn't even offer an explanation for her decision to stay on the case despite a substantial formal motion that she recuse herself. This request for blind allegiance and judicial silence smacks of hubris.
There has always been, and continues to be, a significant public discussion over the extent to which the justices' personal values and politics affect their decisions. Some believe the court's results are politically driven; some argue that politics and personal preferences matter but so do many other values; and some hold to the idea that the justices interpret the law objectively the best they can.
One does not have to pick sides in that contentious debate to believe that a justice who seriously values the rule of law would put on the record the reasons she continues to sit on what may be a landmark case in the face of substantial arguments for recusal. Moreover, a chief justice looking out for the historical legacy of the court should encourage that associate justice to be publicly transparent about such an important ethical question. He should not defend her silence, even by implication.
Maybe there are good legal arguments why Kagan need not recuse herself, but there is no good reason that she shouldn't at least come forward and publicly explain her decision. Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.
Eric J. Segall, a law professor at Georgia State University, is the author of the forthcoming "Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges." Twitter: @espinsegall