WASHINGTON, D.C., Nov. 28—Justice at Stake, a nonpartisan national partnership dedicated to protecting courts from partisan and special-interest agendas, has issued the following statement regarding recent calls for Justices Kagan and Thomas to recuse from the Supreme Court case involving health care legislation:
Properly implemented, judicial recusal promotes public trust and impartial justice by reducing the chance that judges will participate in cases where there is a reasonable fear that they may be biased. But recusal must also permit judges to do the job they are qualified and sworn to do.
Recent disputes over the pending Supreme Court case regarding health care legislation, and in particular calls on Justices Thomas and Kagan not to hear the case, have greatly heightened public attention to the issue of judicial recusal and disqualification. These calls require the balancing of several important factors.
First, each Supreme Court justice has the final word on whether to hear a case or step aside. Justices do not have to explain their reasoning, but they may voluntarily choose to do so. This occurred in 2004, when Justice Scalia wrote a 21-page memo explaining his decision to hear a case involving then-Vice President Cheney, with whom he had dined and gone duck hunting.
Second, a key goal of recusal is to assure the public, even though it has no direct role in a particular case, that court proceedings are fair and impartial. The public’s expectation of a fair process is often heightened in cases involving legal questions that have broad impact. When a case rises to the top of the public’s consciousness – to a level that is likely to affect public confidence in the court system – there are instances where the public benefits from hearing a justice’s reasons for staying on a case or stepping aside. This heightened public interest can exist even if lawyers in the case do not formally seek a judge’s removal.
In the lawsuit challenging the Patient Protection and Affordable Care Act, Justices Kagan and Thomas are not required to explain their decision to stay on the case. But given the heightened scrutiny the case has received, public explanations of their reasoning would increase understanding of the court and promote public trust and confidence. We strongly urge them to consider putting their reasoning into the public record. Further, should disqualification be sought by any party in this case, Justice at Stake strongly encourages any challenged justice to issue a written decision and explanation of their reasoning.
This recommendation is offered carefully and with caution. There is a risk that recusal demands will be pursued for political reasons in high-profile cases. Many legal ethics experts do not believe that recusal is warranted for either Justice Kagan or Thomas. But given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by Justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial—adhering to the law, the Constitution and relevant Supreme Court precedent.
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The Justice at Stake Campaign is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. The positions of Justice at Stake partners are their own, and do not necessarily reflect those of other partners or board members. For information, visit www.justiceatstake.org or read our blog, www.gavelgrab.org.