The recusal red herrings

Recusal red meat — it’s what’s for dinner these days, now that the Supreme Court has decided to review ObamaCare in this session.  It started with ObamaCare advocates demanding that Clarence Thomas recuse himself from any case review, thanks to his wife’s conservative activism at the Heritage Foundation, among other organizations.  The Right responded, with more relevance, by demanding a recusal from Elena Kagan, who worked in the Obama administration as Solicitor General while ObamaCare was being drafted.  Needless to say, neither justice has volunteered for recusal.

Somehow, though, this doesn’t look like a game changer:

On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com’s parent organization, and to Judicial Watch.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails. …

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed–and which became the target of legal challenges–while Kagan was serving as Obama’s solicitor general and was responsible for defending his administration’s positions in court disputes.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

CNS News reported this on Thursday, but it’s getting a lot of play today on the Right.  Carrie Severino sums up the case for Kagan’s recusal at NRO’s Bench Memos and a white paper on the topic.  It’s worth a full read — and this e-mail doesn’t play a notable role in Severino’s reasoning — but her conclusion demonstrates why Kagan likely won’t recuse herself:

Justice Kagan is well acquainted with the recusal process. In her first term on the Supreme Court she recused herself from 29 of the 82 cases decided on the merits – over a third of the Court’s oral argument docket – because of her previous work as Solicitor General.  She has recused herself from even considering at least 69 cert-stage cases so far this term.  U.S. Dept. of Health and Human Services v. State of Florida, et al. promises to be the most important Supreme Court decision in a century, with broad implications for the role of the federal government and the very nature of our constitutionally limited government.  In order to secure the integrity of our Courts and of that decision in particular, Justice Kagan should recuse herself from ruling on the case.

Kagan has been exceedingly conscientious about recusals, perhaps more so than necessary.  It’s safe to say that such scrupulous adherence to the judicial canon will work in her favor when she argues — or more likely her defenders, as Kagan is unlikely to directly address these calls — that she has no need to recuse herself in this case.  And there is little doubt that this is the most significant case of this Supreme Court term, or perhaps any court term since Wickard v. Filburn.  This case gives the court the opportunity to either tighten the leash on Congress and enforce constitutional limits on its power, or simply unleash Congress entirely to regulate every last bit of our lives.  What Supreme Court justice would willing walk away from that argument and opportunity?

That is exactly what it would take, too.  The only controlling authority for the Supreme Court on matters of recusal is … the Supreme Court.  Congress cannot order a recusal, although they can certainly put some pressure on individual justices to recuse themselves.  With a case like this, it would take wild horses to drag a justice away from an opportunity to put a mark on history in either direction.

In other words, no justice on this court will recuse themselves — and everyone knows it.  The arguments taking place against Kagan and Thomas are interesting, but they only serve to shape the rhetorical battlefield for whatever decision comes down from the Supreme Court next summer.  Both sides are preparing for some delegitimization ahead of the decision in order to fire up the base for the 2012 election, and for any efforts needed to repeal ObamaCare in case the court leaves it in place.

However, some Democrats seem to think that’s not likely, even if Kagan doesn’t recuse herself:

Democrats on Capitol Hill are worried that the Supreme Court will rule against President Obama’s healthcare reform law.

Over the last couple weeks, congressional Democrats have told The Hill that the law faces danger in the hands of the Supreme Court, which The New York Times editorial page recently labeled the most conservative high court since the 1950s.

While the lawmakers are not second-guessing the administration’s legal strategy, some are clearly bracing for defeat.

“Of course I’m concerned,” said Sen. Sherrod Brown (D-Ohio). The justices “decide for insurance companies, they decide for oil companies, they decide for the wealthy too often.”

This is just another form of delegitimization, of course, but they’re worried nonetheless.  If the court tosses out ObamaCare, in whole or in part, it will put egg on the face of every Democrat that spent all of their political capital following Obama into the abyss.  That will delegitimize Democrats far more than the Supreme Court, and that would come right before the 2012 elections that they’re already fearing.