Associate Justice Elena Kagan won't participate when the U.S. Supreme Court decides whether Arizona's immigration law is constitutional, presumably because she was a member of President Barack Obama's administration when the law was challenged in the lower courts.
But as big as the immigration dispute is, the court will hear an even more monumental case this spring, challenging the mandate to buy insurance that is at the heart of Obama's historic health care law. Kagan apparently won't recuse herself in that case, even though there are emails suggesting she expressed her views on the matter while working in the White House. Neither will Associate Justice Clarence Thomas, whose lobbyist wife has been associated with groups opposed to the mandate and the law.
The public will never know why the two have rejected calls to recuse themselves based on the appearance of conflicts of interest. Supreme Court justices decide for themselves when to step aside. And unlike other judges, being on the top court means never having to explain the decision. That needs to change. The court should establish guidelines on when recusal is appropriate. And when a justice decides not to step aside, a written, public explanation should be required. At a time when the court's credibility is routinely attacked for partisan gain, it must take all the steps possible to keep its credibility impeccable.
The fight over the health care law has been nakedly partisan. Democrats enacted its reforms over bitter Republican opposition. Now Democrats are pushing for Thomas, a Republican appointee, to step aside, and Republicans are urging Kagan, a Democratic appointee, to do the same.
Before Obama nominated her for the top court in May 2010, Kagan was his solicitor general -- the administration's representative before the Supreme Court. She held that job until August 2010, when she joined the court. Kagan said she had no role on health care while in the administration, but questions linger about her ability to be objective in a case so important politically to her former boss. Those concerns were fueled by email she sent at the time cheering enactment of the law, and have been stoked by the administration's refusal to release more of her communications.
As for Thomas, just hours after the justices huddled Nov. 10 to decide whether to take the health care case, he and Associate Justice Antonin Scalia were featured speakers at a dinner sponsored by a group of law firms, including one founded by Paul Clement, who will argue on behalf of 26 states challenging the law before the top court. That followed earlier questions of a conflict of interest centered on his wife, Virginia, who touted her "experience and connections" in offering her lobbying services to opponents of the health care law. And for 13 years, Thomas failed to disclose his wife's employers, as the law requires, or to report $686,589 she got from the conservative Heritage Foundation.
There may be no solid reason for either justice to recuse himself or herself. But without clear guidelines, including a public statement, the court undercuts its very authority as the nation's ultimate arbitrator.