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Thursday, May 12, 2011

Recusal on the High Court Gets Attention As Health Care Law Works Its Way Through the Courts

Politico yesterday ran an article describing the efforts on both the left and the right to force the recusal of certain justices from the upcoming challenge to the Affordable Care Act, which could be heard in the Supreme Court as early as next October. Conservatives have argued that Justice Kagan should recuse herself because she was Solicitor General while the case was active within the Department of Justice, while progressives have argued that Justice Thomas should recuse due to fact that his wife earned over $700,000 lobbying against the passage of the law. Neither Justice has recused from the case and neither is likely to do so.

Legal ethicist Stephen Gillers predicted that whichever way the case comes out, the losing party is likely to attack the integrity of the decision on the basis that Justices Kagan or Thomas (depending on which side prevails) should have recused from the case.

Regardless of whether one agrees with these arguments, under the current system the only arbiter of the facts and legal issues raised by recusal motions is the accused justice, who may deny a motion without issuing a written explanation. Continuing to allow each individual justice to have the final and only say as to whether they might appear biased risks the continued erosion of public confidence in the integrity of the Court as an institution, and heightens fears that the Supreme Court has become inappropriately politicized.

That is one reason why Alliance for Justice is calling for reforms to the Court’s recusal process that would create more transparency and accountability around a justice’s decisions not to recuse from a case. The current procedure governing recusals should be modified to provide for some method of review of an individual justices’ decision not to recuse. Such a process would help ensure the recusal statute's "appearance of bias" standard is applied, thereby strengthening the ethics of the Court.

To learn more about ethics on the Supreme Court, and the reforms called for by Alliance for Justice, click here.

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