Supreme Court Watch Health care case puts spotlight on Supreme Court recusals Legal experts: Case highlights lack of clear judicial recusal rules

By Kimberly Atkins

The Daily Record Newswire

BOSTON, MA -- The U.S. Supreme Court has yet to decide whether to take up the constitutional challenge to the nation's health care law, but already some critics are stepping up calls for two justices to recuse themselves from considering the case.

Legal ethics experts say the case highlights a major problem at the Supreme Court: a lack of clear judicial recusal rules.

"Historically, U.S. Supreme Court justices rarely disqualify themselves even in situations where lower court judges often would," said Richard Flamm, a Berkeley, Calif.-based attorney and legal ethics expert who has written a treatise on judicial disqualification. "They decide for themselves whether or not they will sit in a case [without giving] a reason."

The Court has been asked to review a 6th Circuit ruling upholding the constitutionality of the Patient Protection and Affordable Care Act. The ruling was the first federal appellate court decision to consider the constitutionality of the law and a provision imposing tax penalties on those who fail to purchase a minimum level of health insurance beginning in 2014.

Rulings on similar challenges before the 4th and 11th Circuits are expected soon, making it more likely that the Supreme Court will take up the case in its upcoming term.

While the justices typically do not indicate whether or not they will participate in a case until it is before the Court, Thomas and Kagan did seem to suggest that they have no plans to sit out the health care challenge. In an order issued in April, the justices declined a request to fast track the 4th Circuit case directly to the Supreme Court.

The one-line notation of the denial gave no indication that either Kagan or Thomas did not participate.

Politicized calls

Some critics are pointing to the federal judicial disqualification rule, 28 U.S.C. § 455, which states that "any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

In this instance, the calls for recusal are based on politics, said Flamm. Thomas' critics fear he will find the law unconstitutional, while Kagan's critics are targeting her anticipated vote in the law's favor.

Some Republican lawmakers have called for an investigation into the role Kagan played in preparing the legal defense to challenges to the health care law during her tenure as solicitor general. The first challenge was filed about two months before she was nominated to the Supreme Court by President Barack Obama.

Though Kagan has stated that she did not take part in in the defense of the law, lawmakers said recent e-mails and documents released by the Justice Department in response to a Freedom of Information Act suggest otherwise.

"This revelation raises serious questions about Justice Kagan's ability to exercise objectivity in any cases relevant to PPACA that comes before the Supreme Court," the lawmakers' letter to congressional leaders states.

In Thomas' case, critics point out that the justice's wife, Virginia "Ginni" Thomas, founded a Tea Party-affiliated group that has called the health care law unconstitutional and worked for the Heritage Foundation, which also opposes the health care law.

Speaking at a Federalist Society event in February, Thomas defended his wife's activities, saying that she "started her organization to give 24/7 every day in defense of liberty. We are equally yoked, and we love being with each other because we love the same things. We believe in the same things."

Thomas' comments were made just weeks after a group of Democratic members of Congress sent him a letter urging him to recuse himself from any health care challenge. The lawmakers cited Thomas' initial omission of his wife's income sources in financial disclosures he is required to file. Thomas later amended his disclosures to include that income.

"The appearance of a conflict of interest merits recusal under federal law," lawmakers wrote to Thomas. "From what we have already seen, the line between your impartiality and you and your wife's financial stake in the overturn of healthcare reform is blurred."

Despite their efforts, in the end lawmakers have little recourse.

"If either Justice Thomas or Justice Kagan decide not the take themselves off the case there is not a whole hell of the lot anyone can do about it," Flamm said.

Murky ethical standard

The case highlights some problematic points regarding judicial recusals at the Supreme Court, said Charles G. Geyh, associate dean for research at the Maurer School of Law at Indiana University in Bloomington, Ind., who has testified before Congress on the issue.

The federal Code of Conduct for United States Judges, adopted by the U.S. Judicial Conference, does not expressly apply to the Supreme Court, although the justices say they voluntarily adhere to its standards. But the decision of whether or not to recuse from a case rests solely with each justice, and the decision cannot be appealed.

That has created what essentially amounts to an honor system, where justices are tasked with evaluating their own ability to be objective. At times these decisions prove to be controversial, as when Justice Antonin Scalia refused to sit out a 2004 case involving then Vice President Dick Cheney, even though the pair had gone on a duck hunting trip together months before.

"It's easier at state supreme courts, where there is a process for substituting judges" who recuse from cases, said Geyh. "It's much harder at the U.S. Supreme Court where there is no process to do that. And there is a good reason. This is a high-stakes venue, and you don't want some guy to come off the street and substitute."

The consequences of judicial recusal decisions are real - particularly on a Court where the justices are often split in controversial cases.

The justices know that "if they recuse, you run the risk of a 4-4 split ... and that is one factor that may weigh" in their decision, Geyh said.

Further, said Geyh, neither Kagan's position as solicitor general nor Virginia Thomas' activities present clear cases for recusal.

"Just because you are solicitor general doesn't mean you worked directly on [a particular] case," he pointed out.

And while proof that Thomas' wife stood to realize financial gain based on the ruling would be enough for recusal, "if the issue is based just on philosophy about the health care law, that's different," Geyh said.

The solution would be for the Court to set clear recusal rules and stick by them.

"To me this is a real opportunity for the Supreme Court to take seriously their own code of conduct," Geyh said.

Published: Wed, Sep 7, 2011

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