SCOTUS Justice Recusal: Safe, Legal and Not-So-Rare

Published 01/05/12

 

If you're a regular reader of the End-of-Year Reports from the Supreme Court of the United States, you noticed an interesting section in the 2011 wrap-up authored by Chief Justice John Roberts.

If you're not a regular reader of the SCOTUS End-of-Year Reports, fear not! That's just the kind of stuff we're tracking at HealthCareLawsuits.org so we can bring the important material to your attention.

Chief Justice Roberts, as you would expect, expressed his confidence in the judgement of his colleagues on the bench:

I have complete confidence in the capability of my colleagues to determine when recusal is warranted.  They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.  I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.  We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.

But, what Roberts laments strikes us as somewhat strange:

But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership.  A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.  Rather, each Justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.

A Supreme Court Justice's decision to recuse is no small matter, for sure. But it's hardly a rare occurrence. For example, because of her previous work as Solicitor General — the government's lead lawyer before the Supreme Court — Justice Elena Kagen recused herself from 29 of the 82 cases the Supreme Court heard in her first term, and she's already recused herself form 69 cases in this current term, including the high profile Arizona immigration law case.

And if there was ever a case from which Justice Kagen should recuse herself, it is the case deciding the constitutionality of ObamaCare.

As Justice Kagen was actively involved in crafting the legal defense the government would make of ObamaCare, it is clear that her conflict of interest is just as great in this case as it is in any of the others from which she has already recused herself.

Chief Justice Roberts is right that each member of the Court has a obligation to be sure of the need before deciding on recusal. We ask, how could Justice Kagen not be sure of the need to recuse herself from the ObamaCare case when it's so clearly obvious to all of us?

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