![\"\"](\"http:\/\/www.jlpp.org\/old_blog\/wp-content\/uploads\/2012\/01\/Healthcare.jpg\" "\\"Healthcare\\"")
<\/a>Unsurprisingly, the Supreme Court <\/a>Unsurprisingly, the Supreme Court recently agreed to hear challenges<\/a> to Obama\u2019s 2010 health care legislation. The ruling, which some claim will be the court\u2019s most important and politicized decision<\/a> since Bush v. Gore<\/em>, draws special significance in the context of the upcoming election year. Soon after the court\u2019s decision to grant certiorari on ObamaCare, critics began to call for the recusal of certain Supreme Court justices, most notably Justice Thomas and Justice Kagan, and to a lesser extent, Justice Scalia. How valid are these recusal requests? Let\u2019s take a look at the justices.\n\nJustice Thomas<\/strong>\n\nThe main argument for the recusal of Justice Thomas focuses on his wife\u2019s work as a conservative lobbyist. Until recently, Virginia (\u201cGinni\u201d) Thomas was President and CEO of Liberty Central<\/a>, an organization that works to repeal health care reform. In a letter drafted by former Representative Anthony Weiner, seventy-four House Democrats addressed their concerns<\/a> about Justice Thomas\u2019s involvement in deciding a case on health care legislation:\n\n\u201cThe appearance of a conflict of interest merits recusal under federal law\u2026 From what we have already seen, the line between your impartiality and you and your wife\u2019s financial stake in the overturn of health-care reform is blurred. Your spouse is advertising herself as a lobbyist who has \u2018experience and connections\u2019 and appeals to clients who want a particular decision \u2013 they want to overturn health-care reform. Moreover, your failure to disclose Ginni Thomas\u2019s receipt of $686,589 from the Heritage Foundation, a prominent opponent of health-care reform, between 2003 and 2007 has raised great concern.\u201d\n\nAlthough Virginia Thomas left Liberty Central last year, she became the head of a firm, Liberty Consulting, just a few months later. Liberty Consulting claimed to<\/a> \u201cuse Ginni\u2019s \u2018experience and connections\u2019 to help clients with \u2018governmental affairs efforts.\u2019\u201d\n\nJustice Kagan <\/strong>\n\nThe circumstances surrounding Justice Kagan\u2019s potential bias prove to be a little more complicated. Justice Kagan served as U.S. Solicitor General (appointed by Obama) from March 2009 until her confirmation as a Supreme Court justice in 2010. Part of her job as Solicitor General was to prepare the federal government\u2019s defense<\/a> to the initial challenges to health care legislation. Justice Kagan, however, contends that she avoided a potential conflict of interest by delegating her health care-related duties to Deputy Solicitor General Neal Katyal. At her confirmation hearing, amidst Republican concerns over her involvement in health care, Justice Kagan stated<\/a>:\n\n\u201cI would recuse myself from any case in which I played a substantial role\u2026This category would include cases in which I approved or denied a recommendation for action in the lower courts and cases in which I reviewed a draft pleading or participated in formulating the government\u2019s litigating position.\u201d\n\nShe seems to be serious about her statement. She has stepped aside in more than one-quarter of the cases heard last term.\n\nOthers point to Justice Kagan\u2019s enthusiasm<\/a> over the passage of the health care legislation and claim it represents her underlying opinion regarding the constitutionality of the health care reform.\n\nJustice Scalia<\/strong>\n\nAlong with Justice Thomas, Justice Scalia recently attended a Federalist Society dinner sponsored by the law firm that will argue the case before the high court. Also present at the event? A firm that represents one of the trade associations that challenged the law, and Pfizer, which has a financial stake in the outcome of the litigation. While the Code of Conduct prohibits federal judges from attending fundraising events as a speaker or guest of honor, the Supreme Court Justices are not bound by it<\/a> \u2013 they instead use as the Code of Conduct a guide for ethical behavior. Most analysts agree that critics calling for Justice Scalia\u2019s recusal are making a losing argument.\n\nTitle 28, Section 455<\/a>, of the United States Code governs recusal, stating that a judge shall recuse himself in any case in which the judge\u2019s impartiality might reasonably be questioned. In his Year-End Report on the Federal Judiciary<\/a><\/em>, Chief Justice John Roberts addresses these concerns of impartiality but validly points out that decisions to recuse are traditionally reviewed by a higher court. As no higher court can review a Supreme Court Justice\u2019s decision to recuse, Justice Roberts emphasizes the obligation of justices to hear a case, writing, \u201cif a Justice withdraws from a case, the Court must sit without full membership.\u201d As a result, \u201ca Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each Justice has an obligation to the Court to be sure the need to recuse\u2026\u201d\n\nRegardless, some argue<\/a> that reassuring phrases such as \u201cjurists of exceptional integrity\u201d fail to address very real public criticisms about the justices, some of which originated long before<\/a> the health care cases came to the forefront. By releasing a sixteen-page report in which he fails to acknowledge any specific public concerns, Justice Roberts seems to be out of touch with the public\u2019s perception of the Supreme Court. In fact, an October 2011 Gallup poll<\/a> found that U.S. Supreme Court approval has dropped to its second-lowest rating ever recorded. This approval did not vary along partisan lines, as \u201cRepublicans, Democrats, and Independents approve of the Supreme Court 50 percent, 46 percent and 44 percent, respectively.\u201dAlthough no justice has hinted at recusal so far, a justice may recuse at any time until the ruling is issued.","protected":false},"excerpt":{"rendered":"Requests that some justices recuse themselves from hearing the healthcare cases reveal the public\u2019s declining trust of the Supreme Court.<\/p>\n","protected":false},"author":1,"featured_media":615,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[28],"tags":[151,317,545,765,1123,1168,1210,1292,1357,1473],"class_list":["post-614","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-student-blogs","tag-antonin-scalia","tag-clarence-thomas","tag-elena-kagan","tag-health-care","tag-obamacare","tag-patient-protection-and-affordable-care-act","tag-ppaca","tag-recusal","tag-scotus","tag-supreme-court"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/614","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=614"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/614\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/615"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=614"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=614"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=614"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}