Recusals on the Court
A detail of the West Facade of the U.S. Supreme Court. The court is taking up a climate change case for the second time in four years. On Tuesday, April 19, the court will hear arguments in the case American Electric Power Co. v. Connecticut, 10-174. The Obama administration is siding with American Electric Power Co. and three other companies in urging the high court to throw out the lawsuit on grounds the Environmental Protection Agency, not a federal court, is the proper authority to make rules about climate change. Credit: AP Photo/J. Scott Applewhite
Chief Justice John Roberts wasn't on the bench Monday when the U.S. Supreme Court heard a patent case pitting Microsoft against a small Canadian firm. He recused himself without saying why. Unfortunately, that's not unusual.
Being a Supreme Court Justice means never having to explain why you step aside. More troubling, it also means never having to explain a decision to not step aside when your impartiality is questioned. That needs to change, especially since the roiling controversy over health care reform has spurred yet another controversy: whether two of the nine justices can be impartial in deciding a case involving the constitutionality of the law's mandate that everyone buy insurance. Against such a partisan backdrop, the decision by any justice to take part or not in any mandate case risks eroding the court's credibility.
The court should establish guidelines on circumstances where recusal is appropriate. And it should require a public explanation when a potential conflict arises and a justice decides against stepping aside.
The lawsuits challenging the constitutionality of the health care law may not arrive before the nation's high court for another year or so, but 74 congressional Democrats have already asked Associate Justice Clarence Thomas to recuse himself when they do. Led by Rep. Anthony Weiner (D-Forest Hills), the group questioned Thomas' ability to be fair because his lobbyist wife, Virginia, touted her "experience and connections" in soliciting potential clients who want the health care law overturned. The justice also failed to timely disclose $686,589 that his wife got between 2003 and 2007 from the Heritage Foundation, a conservative think tank and foe of the reform.
That's compelling evidence of at least the appearance of a conflict of interest for Thomas who, through his wife, has a financial interest in the outcome of the legal dispute. Justice Elena Kagan's impartiality has also been questioned by some Republicans because, before joining the court, she was President Barack Obama's solicitor general -- his representative before the Supreme Court -- during the reform fight. That's a thinner case for recusal right now, but we still must know what role, if any, Kagan played on health care. Kagan was appointed by Democrat President Barack Obama, and Thomas was appointed by Republican President George H.W. Bush.
The fears of partisanship may have been set by recent lower court rulings on the health care mandate, which have split along party lines: Democratic appointees have ruled that the provision is constitutional, and Republican appointees have ruled that it isn't. And it could very well be that the judges' own ideological views about the role of government shaped those rulings, not their party affiliations.
For our system of government to work, however, the integrity of Supreme Court justices, who are appointed for life, must be beyond reproach. What appeared to be a partisan ruling in Bush v. Gore -- the decision that elevated Republican George W. Bush to the presidency over Democrat Al Gore -- and the hyperpartisan nature of the modern Senate confirmation process may have eroded faith in that ideal.
That's a troubling perception that Supreme Court justices should do all they can to dispel.
