Recusal Refusal: Moving on With the Individual Mandate Challenge

In the coming weeks, we'll keep hearing arguments about why two Supreme Court Justices - Elena Kagan and Clarence Thomas - should recuse themselves from the Affordable Care Act arguments. As neither indicated in Monday's orders that they would not participate in the decision, both are slated to be involved in these historic cases.

Why are Court-watchers in such a tizzy about these two Justices?

Conservatives describe Justice Kagan as long-time "cheerleader for Obamacare," and argue that, as Solicitor General during the Congressional healthcare debate, she should recuse herself. Liberals similarly want Justice Thomas to sit out the arguments because his wife, Ginny Thomas, is a conservative lobbyist who has opposed the Affordable Care Act.

Based on both Justices' ideological leanings, we think there's little question that Justice Kagan - regardless of her past role in the Obama administration - will favor the individual mandate, while Justice Thomas - regardless of his wife's professional obligations - will oppose it.

This week, the recusal chatter extended to Justice Antonin Scalia after he attended a Federalist Society dinner. (Really? Does anyone believe that Justice Scalia is a swing vote in these issues?) Perhaps next week, conservatives will respond with a counter-recusal-request for Justice Sonia Sotomayor. (She had medical debt when she was nominated to the Bench! Obviously, she's biased.)

We get it. Healthcare is one of the most personal issues that The Nine will ever consider. Everyone has a stake in this decision. We as a nation revere free speech rights, free exercise of religion, and protection from warrantless searches, but most of us will - fortunately - will never be forced to invoke those rights. By contrast, almost all of us will seek healthcare.

Instead of ratcheting up rhetoric about recusals, why don't we give The Nine the benefit of the doubt that they can decide this case objectively? Each Justice's interpretation of the Constitution is colored by ideological leanings, and we don't expect those to change in this case, but - as naive as it may be - we believe that they are capable of hearing these cases without letting outside forces influence their decisions.

And let's get real: even if we're wrong about their objectivity, will arguing about it change anything?

Related Resources:

• No Surprise: Supreme Court Grants Individual Mandate Writs (FindLaw's Supreme Court blog)
• First Elena Kagan, Now Clarence Thomas: The Case for Recusal (FindLaw's Supreme Court blog)
• Looking Ahead: Supreme Court December Oral Arguments (FindLaw's Supreme Court blog)