“Despite a concerted drive by their ideological critics, two Supreme Court justices – Elena Kagan and Clarence Thomas – signaled late last month that they have no intention of recusing themselves from the court’s all but inevitable consideration of the Obama administration’s new health care law.
But the vigorous legal, legislative and public relations campaigns mounted by the left against Thomas and the right against Kagan show no signs of abating – and that is hardly an accident.
It means that both sides are determined to make the Supreme Court and its decisions a major political issue headed into the 2012 election.
The attempt to prove that Kagan and Thomas have irreconcilable conflicts preventing them from objectively considering the health care law is “not so much aimed at ensuring that one or the other justice will step aside,” said Stephen Gillers, a New York University School of Law professor who studies legal ethics, “as providing fodder for a claim that a decision, whichever way it goes, is illegitimate.” (See also: Elena Kagan vote warns of battles to come)
Gillers, who couldn’t recall another case prompting countervailing recusal demands, sees the trend as undermining the Supreme Court. “Today, the court has come to be seen as just another political body and the law is just politics of another form,” he said.
But if the Supreme Court’s ultimate ruling on health care is politicized, it’s only following the pattern already established by the way lower courts have ruled on the ongoing legal challenge to the law. (See also: Health care may be Supreme Court nail-biter)
So far, rulings in the more than 30 federal court challenges have broken down along partisan lines – two Republican appointed district court judges have declared it wholly or partly unconstitutional, while three Democratic appointees have upheld it.
The first appeals court hearings on the case are scheduled for today in Richmond, and the Supreme Court could ultimately decide the issue before November, 2012.
If it does, partisans on both sides of the law are ready.
“If (the healthcare overhaul) is upheld by a 5-4 decision, the Republicans can say that it was upheld by one vote and that vote shouldn’t have been there,” said Gillers. “And if it’s stuck down by a 5-4 ruling, Democrats can make the same argument.”
And that could presage a larger debate about the future of the court.
“There will definitely be an argument in the 2012 election that we are on the verge of having another (liberal) Warren Court, because (conservative justices Anthony) Kennedy and (Antonin) Scalia will be 80 by the end of 2016,” said Curt Levey, executive director of the Committee for Justice, a conservative non-profit that lobbies and advertises in support of Republican.
If Thomas sides with the majority to overturn all or part of the healthcare law, Rep. Anthony Weiner (D-N.Y.) said “I will be making that point that this is not a credible decision.”
Weiner has collected dozens of House Democrats’ signatures on a letter asking Thomas to recuse himself from the health care case, and on Monday he announced an effort to spotlight the personal finances of Thomas’s wife Ginni, which Justice Thomas will be required to disclose May 15.
Liberals – who allege that Ginni Thomas’s tea party activism has created a financial stake in the outcome of the case – have sought to cast suspicion on the ethics and pro-business judicial approaches of not only Thomas, but Scalia and, to a lesser extent, Justice Samuel Alito.
Conservatives, who allege that Kagan’s work as Obama’s solicitor general should disqualify her from the case, have made the argument that the administration has used secretive tactics in carrying out an over-reaching agenda for which the former Harvard Law School dean is a rubber stamp. (See also: What the Elena Kagan pick says about President Obama)
Rhetoric aside, neither side has made compelling case for recusal, concluded Steven Lubet, a legal ethics expert and professor at Northwestern University School of Law. He put the chances that Thomas and Kagan would recuse themselves at “precisely zero, with no rounding error.”
The surest sign of that came April 25, when the court issued a procedural decision rejecting Virginia Attorney General Ken Cuccinelli’s request to expedite consideration of his lawsuit challenging the constitutionality of the healthcare law’s mandate requiring individuals to buy health insurance.
The court’s order, which typically would note if justices withdrew from participation, offered no such indication, nor did a November order rejecting a fast-track request in a similar case brought by a conservative California non-profit, the Pacific Justice Institute.
“Recusal requirements kick in at the very first instance when a case reaches the courts, so the absence of a notation on this order almost certainly means that both Kagan and Thomas participated,” said Lubet. “And if they participated in this, that’s a strong indication that they’ll participate all the way through.”
The suit filed by Cuccinelli – along with another Virginia-based challenge – is set to be argued today in the Fourth Circuit Court of Appeals, while another suit brought by 26 states is scheduled for oral arguments in the 11th Circuit next month – putting all on a pace that could enable the Supreme Court to hear arguments in one case or a consolidated case in time to issue a decision months before the 2012 election.
Meanwhile, two conservative watchdog groups – Judicial Watch and the Media Research Center – are pursuing lawsuits for records requested under the Freedom of Information Act related to any work Kagan may have done as solicitor general on the healthcare overhaul. A third conservative group that requested Kagan’s work records under the act – the Judicial Crisis Network – is expecting a response from the Justice Department today, though the group also seems poised to sue to extract more records.
Kagan’s conservative critics were emboldened by 71 pages of records released by the Justice Department in March in partial response to the Media Research Center’s request. Though they offer no definitive proof of Kagan’s involvement in crafting defense strategies, Sen. Orrin Hatch (R-Utah) asserted to POLITICO that they “raise further questions about her involvement, at least as an adviser, in the preparation for this litigation.”
In one email sent before the bill even passed, Kagan dispatched her top deputy Neal Katyal (who is representing the administration in Richmond today) to a January 2010 meeting “about how to defend against inevitable challenges to the health care proposals that are pending.”
Kagan ended another email chain in which Katyal had suggested that Kagan herself should attend a subsequent meeting on the subject (which Katyal had described as “litigation of singular importance”) by abruptly asking “What’s your phone number?”
Carrie Severino, chief legal counsel for Judicial Crisis Network said the emails released to the Media Research Center indicate “that (Kagan) certainly has some level of involvement and suggest that there’s more out there” that may conflict with Kagan’s characterization in her confirmation hearings.
“I don’t want to suggest that there was perjury – we do not have information to make such an accusation,” said Severino, who once clerked for Thomas. “But, if in fact there were something in there (to show she perjured herself), that’s something that would be an impeachable offense. Otherwise, it’s a lifetime appointment, so it really boils down to the court of public opinion.”
Sen. Jeff Sessions (R-Ala.), the top Republican on the Judiciary Committee, said Kagan’s participation in any Supreme Court decision about the fate of the law “could potentially put a cloud over the ruling, so I think that’s why there ought to be serious consideration given to a recusal.”
Hatch, who is a member of Session’s committee, has already made up his mind, telling POLITICO “I believe she should have recused herself, but that is a decision she alone can make.”
Supreme Court justices, in fact, are the final arbiter of when to recuse and they aren’t required to explain those decisions publicly.
Kagan has already sat out 26 of 78 arguments since she’s been on the court, likely out of deference to a federal law requiring judges who had served in government to recuse themselves when they have “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
Thomas’s critics, in making the case that Ginni Thomas’s political activity should require him to recuse himself from pending healthcare litigation, point to a different section of the law. It requires recusal when a justice knows that his or her spouse “has a financial interest in the subject matter in controversy…or any other interest that could be substantially affected by the outcome of the proceeding.”
As president until late last year of an anonymously funded tea party non-profit group called Liberty Central, Ginni Thomas did advocate for the repeal of the health law and also support candidates who took similar stands. And the group signaled its intent to pay her $150,000 in 2010 (with planned $15,000-a-year raises this year and next), according to a public document obtained by the liberal watchdog group Common Cause.
But Thomas stepped down from Liberty Central in December, and appears to have little ongoing connection to the group. And there is no evidence that Liberty Consulting – the lobbying firm she founded to use her “experience and connections” to help clients “with “governmental affairs efforts” and political donation strategies – has run afoul of the conflict statute.
Yet, setting aside the question of a financial conflict, Common Cause vice president Arn Pearson accused Justice Thomas of revealing a predisposition to overturning the healthcare law during a February speech to conservative law students.
Responding to scrutiny like that leveled by Common Cause and media outlets, Thomas, in audio obtained by POLITICO, said he and his wife “believe in the same things” and “are focused on defending liberty.”
The speech contained “coded” language that is “a pretty thinly veiled reference” to his belief that “that (the bill) is unconstitutional,” said Pearson.
Though his group hasn’t officially urged Thomas to recuse himself from the healthcare challenge, it did send a letter to Chief Justice John Roberts highlighting the need for more uniform ethics policies at the Supreme Court.
And it supports a bill sponsored by Rep. Chris Murphy (D-Conn.), to strengthen Supreme Court ethics.
The bill was prompted by concerns over what Murphy called Justice Thomas’s “willingness to use his position on the bench for political reasons.” Murphy explained “I’m not a constitutional lawyer, but I know enough about Supreme Court precedent to know that a decision overturning the individual mandate would have to be explained in part by politics.””