Both Kagan and Thomas have been requested to recuse themselves from the upcoming health care case.
Okay, my opinion (in two parts no less):
Objectively, they both should recuse. Kagan was a participant in the Administration that championed the law at the time it was being championed. Thomas has personally been the beneficiary of the organized opposition to the law.
Politically, they both should recuse. The effect is, for all practical purposes, a wash (so the decision is 4-3 instead of 5-4) and it would go a long way towards restoring some sense that the Court has some standards.
Thomas and Scalia also went to parties funded by the health companies and I believe spoke at them. Why not them too? Although Scalia has never refused to judge a case, no matter how close has has been tied to it.
Among the other precedents set by the landmark case of Marbury v. Madison was the principle that a Supreme Court Justice can decide for himself if there is a conflict of interest. Chief Justice John Marshall wrote the decision in that case despite the fact that he was almost a co-defendant.
Thanks for the early responses. I should note that I do not want this thread to be about arguing the merits of the suit. This is not about the actual law under consideration.
Further, I’d prefer that it not be about the actual liklihood of either actually recusing themselves.
As for Scalia, honestly, I’m willing to give him a pass on that unless he actually spoke specifically about the merits of the case currently before the Court. Judges (even SC Justices) are human and thus going to have numerous ties to just about any case before the Court. Thomas gets special consideration since his wife works, more or less full time, for an interested party.
Judges at that level are going to come into contact with interested parties. Just because Ginsburg may have talked to an organization or attended an event doesn’t mean she must recuse herself. Thomas’s and Scalia’s attending an lawyerly event gets a pass, just as if a liberal justice attended a an even sponsored by the ACLU. The fact is that there are both liberal and conservative stances regarding the law. I’m sure that all the justices are kinda aware of this.
Kagan, on the other hand is being pushed to recuse herself because she apparently, has already made up her decision on how wonderful the healthcare plan’s passage was.
The only reason that Thomas may be urged to recusal is his wife’s role. But I give him a pass here, unless it is routine for justices to recuse themselves based on their spouse’s activity. But I doubt that’s the case. It assumes that a husband and wife can’t disagree on issues of law/politics. Hell, just look at these two. Who, by the way I like a lot. Both of them.
What do you base this on? And do you have any reason to feel she’s any different than the other eight justices?
Judicial nominees may play coy at their confirmation hearings but they are supposed to be legal professionals. It would be irresponsible of them to not be aware of current American law and to not have opinions on the subject. Once they’re on the court, Justices are going to follow legal news and they’re going to be aware of what significant cases on going on. They’re going to know the issues before they choose which cases they want to review.
So let’s face facts. Ninety percent of the time, Supreme Court Justices have probably decided how they’re going to vote before the hearing begins. It’s not like Perry Mason is going to call a surprise witness to appear before the Supreme Court.
I see no reason for either justice to recuse themselves from this case.
The “urging” against Kagan is a pretty hollow attempt by ring-wing media groups to tip the balance of the court in their favor. Merely having worked for the Obama administration does not constitute a conflict of interest, nor does the idea that she was pleased by the bill’s passage. If justices are now required to not have personal opinions on ANY legislation that may eventually end up before them, then all nine would have to recuse themselves from every case.
I’m not too familiar with the allegations about what Thomas’ wife did, but I don’t think Thomas can be held responsible for his wife’s behavior.
Do you think that she would be pleased by the passage of an unconstitutional bill? I had never heard of that email before, but IMHO it’s pretty damning as far as being able to fairly judge the bill. It is OBVIOUS that she has expressed strong approval of it and has already made her mind up about it. At least to me this is a textbook reason for recusal.
Has Thomas made up his mind? Sure, he has, but the appearance of impropriety is not there unless he should bitch slap his wife and make her stay home and bake cookies. A spouse is allowed to have his or her own interests. It would be impossible for a high profile person to avoid an association with someone who aligned themselves with a political cause.
Not to hijack, but does anyone else think this will be a rout? After the Raich decision, it’s pretty clear that Congress has wide authority to impose a national program. I predict a 7-2 upholding the law with Thomas and Alito dissenting. I personally disagree, but Scalia seems to have bought into the Wickard/Raich line of thinking.
The story goes on to point out that if they were on a lower court, they’d likely be judged in violation of the ethics rules that apply to the lower Federal courts. But the Supreme Court is exempt from these rules.
It’s also worth noting that Scalia and Thomas have been past attendees at the Koch Brothers’ political strategy sessions.
Of course the mind of a Supreme Court Justice isn’t going to be a blank slate, and they’re going to see the world from a particular point of view that will inform their votes on key cases. But being a participant in a movement with clear political goals is beyond inappropriate for a Supreme Court Justice, IMHO. In a more reasonable world, there’d be talk of impeaching them.
Can someone propose a rule that would require Thomas to recuse himself, but not require Judge Reinhardt to have recused himself in the California same-sex marriage appeal when his wife was the Executive Director of the ACLU, which organization was in strongly in favor of retaining marriage rights for same-sex couples and had that as one of its published and funded goals?
Reinhardt said, in his opinion refusing to recuse himself:
I think you have an obligation to first make the case that the situation was sufficiently similar in both Thomas’ and Reinhardt’s cases before requesting a single rule that applies to both.
Kagan has already recused herself from several cases due to her service in the administration. In one important case in my area of the law, her recusal resulted in a 4-4 tie, leaving an important issue unresolved and she has recused herself again from another case in my field that was just argued. I wonder if anyone has compiled statistics comparing Kagan’s recusals to other members of the court?
Having served in an administration (especially the current one) leads to opportunities for recusing herself that other justices who haven’t served in that capacity simply wouldn’t have.
For instance, Rehnquist recused himself from US v. Nixon (the Watergate executive privilege case) because he had served in the Justice Department in the Nixon administration.
OK, but I don’t think statistics alone are going to tell you much, since each justice has his/her own unique history that informs the decisions to recuse. Maybe if you looked at all justices who had served in administrations vs all those who hadn’t.