Has anyone taken the demands for the recusals of Supreme Court justices on the ObamaCare case seriously? As I’ve written previously, they’re not offered seriously, but as a way of shaping the post-decision political battlefield, efforts that have begun on both sides of the issue. Chief Justice John Roberts told both sides to back off in his annual report to the federal judiciary:
The chief justice’s comments came in his annual report on the state of the federal judiciary. In it, he made what amounted to a vigorous defense of Justices Clarence Thomas and Elena Kagan, who are facing calls to disqualify themselves from hearing the health care case, which will be argued over three days in late March. He did not, however, mention the justices by name.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given ad-vice or expressed an opinion “concerning the merits of the particular case” or when their “impartiality might reasonably be questioned.” For lower court judges, such a decision can be reviewed by a higher court, but the Supreme Court has no such review.
Chief Justice Roberts said the Supreme Court’s unique status made it impossible for the justices to follow the practices of lower-court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.
“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote. “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”
There is only one controlling authority for the issue of recusals at the level of the Supreme Court: the individual justice in question. Neither Congress nor the President can require a justice to recuse himself or herself from a case, and as Roberts writes, the Court would destroy itself if it attempted to “select” justices for the decision. Certainly they can apply peer pressure if an especially egregious set of circumstances arose, but they could not bar a justice from participating in a decision without opening a Pandora’s box of very, very bad consequences. The only remedy would be for Congress to impeach a justice that refused to recuse, but unless the evidence for conflict of interest was stark and unequivocal, that would touch off a partisan battle that would make the confirmation hearing for Robert Bork look like a postal-office naming debate.
Everyone already knows that neither Elena Kagan nor Clarence Thomas will recuse themselves from this case. Roberts would like both sides to quit making demands and either inadvertently or purposefully undermining the credibility of the Court before they even get to opening arguments.