As controversy intensifies regarding the upcoming Obama-care challenge, Chief Justice John Roberts took the unusual step Saturday of defending the Supreme Court’s policy regarding recusal and voiced his support in the justices’ decisions on whether or not to sit out upcoming cases.
Roberts’ comments on the recusal question appeared in his year-end report. As we discussed in an earlier post, found here, a chorus of special interest groups have called for Justices Elena Kagan and Clarence Thomas to recuse themselves from participating in cases testing the constitutionality of the Obama-sponsored federal health care law.
Without referring to either Kagan or Thomas specifically, Roberts wrote, “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.”
Kagan, appointed to the Supreme Court by President Obama, served as solicitor general, the federal government’s top lawyer at the Court, when the president signed the healthcare law in March 2010. Thomas’ wife, Virginia, a conservative activist affiliated with the Tea Party, has spoken out against the health-care overhaul, brining Thomas under fire from groups at the opposite end of the political spectrum. Some conservative groups, including the Judicial Crisis Network, have demanded that Kagan recuse herself when the case is heard. Meanwhile some liberal groups, including the Alliance for Justice, have raised concerns about Thomas’ bias.
Most legal experts see no real reason for either justice to sit out. The report containing Roberts’ statements is typically perfunctory and unexciting. This year Roberts chose to make a statement after observing that such issues “have recently drawn public attention.”
Roberts noted that federal law requires judges to disqualify themselves from a case when their impartiality might reasonably be questioned. He stressed that the standard focuses on “the perspective of a reasonable person who is knowledgeable about the legal process and familiar with the relevant facts.” As a result, Roberts said justices’ decisions on recusal are not subject to any review because they sit on the country’s court of last resort.
He added that when justices assess any potential conflict of interest, they must consider that no other judges can substitute for one of the nine. “If a justice withdraws from a case,” he observed, “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.”
The health-care cases are scheduled for three days of oral arguments in late March.