Healthcare Reform: Should Any Supreme Court Justice Recuse Themselves?

The Patient Protection and Affordable Care Act (sometimes called “Obamacare” – usually by its critics) has been the signature legislative accomplishment of Barack Obama’s presidency. It is perhaps the most sweeping overhaul of the American healthcare system in our country’s history. Through new regulations on insurers (mainly a prohibition on discriminating against patients based on pre-existing conditions), the establishment of regional health insurance exchanges and – its most important and controversial aspect – a requirement that almost all Americans obtain some form of health insurance, the PPACA is meant to improve access to healthcare services, while lowering costs. Whether or not it will succeed in that goal remains to be seen, as its most significant provisions don’t take effect until 2014.

As you might expect, many aspects of this law – particularly the individual mandate – have been extremely controversial, and several states and interest groups have brought lawsuits challenging its constitutionality. When the first of these lawsuits was filed, pretty much everybody assumed that the question of the law’s constitutionality would ultimately have to be resolved by the Supreme Court, and now the Court has taken the case, with arguments expected to occur early next year, and a final ruling expected in the summer or fall of 2012 – right before the next presidential election.

As in any politically charged case, both sides of the ideological argument over the PPACA are seeking every tactical advantage they can find, in order to increase the likelihood that the Court comes down on their side.

To that end, commentators on both sides of the political spectrum are calling on a few justices to recuse themselves from the case. Essentially, a justice recuses him or herself from a case when there is an actual or apparent conflict of interest that might affect the justice’s ability to be impartial. For example, if a case involving a large corporation goes before the court, and one of the justices once served on the company’s board of directors, that justice would almost certainly be called upon to recuse himself, and would probably do so.

So, according to some observers, a few of the justices are so hopelessly biased that they must take no part in deciding the case (and, therefore, changing the balance of likely liberal and conservative votes among the remaining justices). It just so happens that, if you’re a conservative, the justice who should recuse herself is liberal, and vice versa.

I happen to agree with former attorney general Michael Mukasey, who argues that calls for justices to recuse themselves, from both sides, are without merit, and blatantly political.  Conservatives are arguing that Justice Elena Kagen, one of President Obama’s two appointees to the Supreme Court, should recuse herself because she worked as the Solicitor General (the lawyer who is in charge of representing the United States government in cases before the Supreme Court) in the Obama Administration while the PPACA was being drafted, and while the Justice Department, anticipating the court challenges to the law, was working on developing its defense strategy. In a few emails, she also voiced strong support for the law.

Superficially, it looks like Justice Kagen may well be too biased in favor of the law to make an impartial judgment. However, according to virtually all accounts, she walled herself off from any discussion of the Justice Department’s defense strategy, and had absolutely nothing to do with drafting the law. This is likely because the Justice Department knew that ­she was on the “short list” of potential nominees to fill the next vacancy on the Supreme Court. So, assuming that she was properly insulated from the drafting of this law, and had no part in working on its defense strategy, she should be able to make an unbiased decision. And she has been very diligent in recusing herself from cases where her past work in the Obama Administration would create any appearance of bias.

And the fact that she expressed her support for the law is also largely irrelevant. Supreme Court justices are human beings, and like most people, they have political opinions. That generally doesn’t stop them from ruling on politically charged cases, and I don’t see why this one should be different.

There have also been calls for Justices Scalia and Thomas (two of the most reliable conservative votes on the Court) to recuse themselves, because they attended a dinner hosted by the Federalist Society (an organization of conservative and libertarian law students), which was sponsored by some law firms representing parties seeking to overturn the law. Again, this amounts to little more than an expression of their personal views, and hardly demonstrates a conflict of interest.

It’s not surprising that interest groups are looking for every tactical edge in the litigation over this law. However, I believe that the justices on both sides of the ideological spectrum should stand their ground.

The Supreme Court is one of the only government institutions which have remained more or less apolitical since its inception. For justices to give into calls to recuse themselves that are clearly motivated by politics would be a serious blow to that record.

Whatever your opinion of the health care law, this debate is important enough that it should stand or fall solely on its constitutional merits, without any political meddling that could call the legitimacy of the Court’s eventual decision into question.