Dec 31, 2011 7 Comments ›› Pat Dollard
In the face of a growing controversy over whether two Supreme Court justices should disqualify themselves from the challenge to the 2010 health care overhaul law, Chief Justice John G. Roberts Jr. on Saturday defended the court’s ethical standards.
The chief justice’s comments came in his annual report on the state of the federal judiciary. In it, he made what amounted to a vigorous defense of Justices Clarence Thomas and Elena Kagan, who are facing calls to disqualify themselves from hearing the health care case, which will be argued over three days in late March. He did not, however, mention the justices by name.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given advice or expressed an opinion “concerning the merits of the particular case” or when their “impartiality might reasonably be questioned.” For lower court judges, such a decision can be reviewed by a higher court, but the Supreme Court has no such review.
Chief Justice Roberts said the Supreme Court’s unique status made it impossible for the justices to follow the practices of lower-court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.
“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote. “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”
Some critics, mostly on the left, say Justice Thomas should step aside because of the activities of his wife, Virginia, in working with groups opposed to the law. Others, mostly on the right, say Justice Kagan should not hear the case because she may have been involved in aspects of it when she was United States solicitor general. There is every indication that both justices intend to participate in the health care case.
Much but not all of the criticism of Justices Thomas and Kagan has come from partisans, and most experts in legal ethics say there is no evidence that either justice has crossed an ethical line requiring recusal. “It’s not even close,” said Stephen Gillers, an authority on legal ethics at New York University.
The Supreme Court is expected to decide the fate of the 2010 health care law, President Obama’s signature legislative achievement, by the end of June, just as the 2012 presidential campaign enters its crucial final months.
The central issue in the case, which is an appeal from a decision of the United States Court of Appeals for the 11th Circuit in Atlanta, is whether Congress overstepped its constitutional authority by requiring almost everyone to obtain health insurance or pay a penalty. The Obama administration contends that this part of the law, often called the individual mandate, can be justified by the constitutional power of Congress “to regulate commerce” and “to lay and collect taxes.”
Beyond his apparent defense of Justices Thomas and Kagan, the chief justice used the report to fend off critics who say Supreme Court justices should be bound by the same code of judicial ethics that applies to other federal judges. He pointed out that the justices voluntarily follow the same rules, but said they should not be bound by them. Congress has also enacted laws concerning gifts and financial disclosure that are also applicable to Supreme Court justices.
The constitutionality of those laws remains an open question, Chief Justice Roberts wrote, adding that the justices nonetheless abided by them, including the “sometimes complex reporting requirements” for financial disclosure.
There have been missteps. Justice Thomas for several years failed to note the sources of his wife’s income on financial disclosure forms. After the watchdog group Common Cause raised questions, he issued amended forms last January. A court spokeswoman said at the time that the information had been “inadvertently omitted due to a misunderstanding of the filing instructions.”
Chief Justice Roberts said the justices also comply with the recusal law, though he added that “the unique circumstances of the Supreme Court” must be taken into account.
“There is only one major difference in the recusal process: There is no higher court to review a justice’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there be only ‘one Supreme Court.’ ”
That also means, he added, that recusal at the Supreme Court is particularly problematic.
“If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place,” he wrote. “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,” he added. “Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”