Chief Justice John Roberts used his year-end report on the Supreme court to defend the ethics of all the judges that sit on the high bench. Without naming Justices Clarence Thomas or Elena Kagan, he was responding to partisan calls for both of them not to be present when the court decides on the legality of President Barack Obama's overhaul of the health-care system. The Wall Street Journal
reports that 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."
The chief justice in his review did not refer specifically to the health-care case, which is scheduled for argument in March. But for months, the left has been calling for Justice Thomas to recuse himself, pointing out that his wife's paid work for conservative groups opposed to the Patient Protection and Affordable Care Act is a conflict of interest.
The right, meanwhile, would like Justice Kagan to disqualify herself, charing that her former post in the Obama Justice Department makes her too cozy with the administration's interests.
Not a single justice has actually been asked by any of these groups to withdraw from the case.
Roberts also pointed out in his reports that if one of the nine justices were withdrawn from the healthcare case, the outcome could be a 4-4 tie. And that situation would not clarify the law because the healthcare’s individual mandate has been deemed unconstitutional in one regional circuit and upheld in another. A justice cannot withdraw from a case “as a matter of convenience or simply to avoid controversy,” Roberts wrote.
The main question that the high court will take up is whether Congress has the authority to require Americans to have health insurance or pay a penalty. The government says it's totally legal, based on Congress's constitutional authority over interstate commerce, as well as its power to levy taxes and enact "necessary and proper" laws. The 26 Republican-controlled states challenging this, say they disagree with that and call the law an unusual extension of federal power.
The Los Angeles Times
reports that Roberts also pointed out in his report that if one of the nine justices were withdrawn from the healthcare case, the outcome could be a 4-4 tie. And that situation could not clarify the law because the healthcare’s individual mandate has been judged unconstitutional in one regional circuit and upheld in another. Roberts wrote,
"A justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy."
Based on their backgrounds and past behavior, Justice Thomas is likely to find the insurance mandate unconstitutional, while Justice Kagan is expected to decide that Congress has the right to use such a mechanism to finance health care. Neither justice has made any response to the calls for them to recuse themselves.
Justice Roberts himself had previously explained that ethics rules for federal district and appeals courts do not formally apply to the Supreme Court, but that high court judges voluntarily hold themselves to the same standard. The judge wrote, this is call for them to withdraw from
"Any case in which the judge's impartiality might reasonably be questioned."
And Roberts points out that if we examine the ethics code, we see that it "provides that a judge 'should not be swayed by partisan demands, public clamor or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.
"Such concerns have no role to play in deciding a question of recusal."
And he also pointed out that any judge decides for himself or herself whether to sit out a case, and those decisions can be appealed. But since there is no court above the Supreme Court the recusal decision rests with each individual justice.
The chief justice explains in his year-end report that Supreme Court justices should not recuse themselves unless they find it absolutely necessary, because under the current law, no other federal judges or even retired justices can substitute for them.
"A Justice … cannot withdraw from a case as a matter of convenience or simply to avoid controversy."
But that can be questioned. There are three retired Supreme Court judges, two of which can and do serve as substitutes on the lower courts. One, retired justice John Paul Stevens, has proposed that federal law be amended to permit retired justices to sit when an active member recuses. The Senate Judiciary Committee chairman, Sen. Patrick Leahy (D., Vt.) has introduced legislation to allow this, but the current crop of justices are unenthusiastic.
But Senator Leahy said in a statement he's not giving up yet.
"Given the recent public attention to the question of recusals on the Supreme Court, the New Year may provide another opportunity for us to consider this proposal."