Now that the Supreme Court is set to hear the legal challenge to the Affordable Care Act, talk of recusal is in the air. There have been calls for Justices Clarence Thomas and Elena Kagan to step aside – Thomas due to perceived bias and his wife’s lucrative anti-healthcare work and Kagan due to her previous role as the Obama administration’s solicitor general.
Should either justice step aside? That’s a matter for debate. But what isn’t debatable is the destructive nature of the process by which the ultimate recusal decisions will be made. It’s a process that threatens the legitimacy of the Court, the justices, and the decisions they render.
So, what happens, for instance, when calls go out for Clarence Thomas to recuse himself from the health care case?
- Who decides? It is a basic legal precept that no one should be a judge in his or her own case. Yet this is exactly what Supreme Court justices are allowed to do when a party claims a justice has in a conflict of interest and should step aside from a case. That’s right; the only person who will decide whether or not Clarence Thomas should recuse himself is Clarence Thomas.
- How does he decide? Let’s give Justice Thomas the benefit of the doubt and assume that when presented with calls for recusal, he will weigh each charge on the merits and consider whether a person might reasonably question his impartiality. Thomas will mull over these questions by himself, out of the public eye. He might seek advice from other justices or he might not. He might sit in his office and make a list of pros and cons. He could do all those things or none, and we might never know how he arrives at his answer, because unlike with other federal judges, there is no process in place to challenge, review, or appeal his decision, although the recusal statute does describe what might qualify as cause for stepping aside.
- What will he say? Unlike other federal judges, when a Supreme Court justice denies a motion to recuse, there is no possibility of further review or appeal. They are not even required to issue a written decision explaining their decision. Clarence Thomas could reach his decision silently and announce it silently, simply by taking his seat on the first day of arguments. And once he does, the case of whether or not Clarence Thomas should recuse will be closed forever.
Although the law dictating when a judge must step aside from a case already applies to the Supreme Court, each justice is allowed to self-judge whether his or her decision on a recusal motion is consistent with that law... despite the fact that just two years ago the Court recognized the importance of an objective process for resolving recusal motions in a case involving perceived bias by a judge.
In Caperton v. A.T. Massey Coal, the Court held that a state Supreme Court judge should have recused himself because he had received millions of dollars in campaign contributions from the head of Massey Coal. The Court’s decision said it did not matter that the judge believed he was not biased and could be impartial. The majority decision emphasized the need for an objective test to evaluate whether a judge might appear biased, especially “where, as here, there is no procedure for judicial factfinding and the sole trier of fact is the one accused of bias.”
In Caperton, the justices reiterated the age-old legal principle that no one should ever be the judge in his or her own case. Apparently, though, what’s good for the goose is not good for the gander, since the Supreme Court has not seen fit to apply this common-sense standard to itself.
Alliance for Justice took a hard look at judicial ethics and growing concerns about the appearance of impropriety in our new documentary film, “A Question of Integrity: Politics, Integrity, and the Supreme Court,” and concluded that reform of the recusal process and basic ethics rules are urgently needed.
Unless the Court finally and formally adopts some clear and objective rules for reviewing and evaluating each justice’s decision on conflicts of interest and the appearance of impropriety, this question will come up again and again, each time chipping away at public confidence in the Court’s integrity. That’s not something the Court or the country can afford. It’s time for the Supreme Court to make their recusal decisions transparent and reviewable.
Will Clarence Thomas recuse himself? Only one man knows for sure, and he isn’t talking.