Since the Supreme Court last month agreed to take on the constitutional controversy over the new federal health care law, hardly a day has passed without a renewed call for two Justices to step down from any role in that coming decision. The demands, coming largely from advocacy groups on the right and left, but also from a few members of Congress, have insisted that Justices Elena Kagan and Clarence Thomas should be disqualified.
That raises anew questions that have been debated for generations in political and legal circles: When must a Supreme Court Justice step aside from a particular case, and can a Justice be forced by outsiders to do so?
A federal law that the Justices sometimes accept as good advice, if not a binding command, says that a federal judge should step aside from any role in a case “in which his impartiality might reasonably be questioned.” The challengers to Kagan and Thomas argue that this clearly applies to them because they supposedly have conflicts of interest that raise questions about their fitness to sit on the Affordable Care Act cases.
For Kagan, the claim is that, in her former role as U.S. Solicitor General, the federal government’s top advocate in the appeals courts and the Supreme Court, she surely had some role in fashioning the Obama Administration’s constitutional defense of the new law, and thus is legitimately suspected as a Supreme Court Justice of being committed to vote to uphold the law. Kagan has responded publicly that she diligently stayed away from any government role in the handling of the cases.
For Thomas, the claim is more multi-faceted: that his wife Virginia is actively involved in advocacy groups that have opposed the new law, that he has failed to disclose the income the family gets from her advocacy, and that Thomas himself has personal ties to and has accepted favors from donors to Mrs. Thomas’ organizations. Thomas has not responded publicly, although he did make a late filing of a financial disclosure statement to list his wife’s income.
The Court has already issued two orders in preliminary phases of its review of the new health care law, and both Kagan and Thomas made no mention that they were disqualifying themselves. That may well be the end of the matter, from their perspectives. However, since the Court will not hold a hearing on the cases until March, it is entirely predictable that the demands for disqualification will continue.
Under the Constitution, the only way to force a Justice not to sit is the mechanism of impeachment. That is, of course, a method to get a Justice entirely off of the Court, based on charges of misconduct leveled by the House of Representatives, and conviction on those charges by the Senate. The impeachment method cannot be calibrated to force a Justice to step aside just temporarily, for a given case.
And, as the Justices themselves have long viewed the question of disqualification, it is a matter left to themselves alone. If, for example, someone with a case pending before the Court files a formal motion to disqualify a given Justice, the Court will routinely pass that to the Justice involved, to decide on his or her own, with no input from the other eight members of the Court.
The Justices also have routinely followed another approach to the issue of disqualification: the view that they have a duty to sit as long as an argument for them to disqualify is not absolutely clear-cut. Two Justices of the modern Court wrote lengthy opinions that relied heavily upon a “duty to sit” rationale for a personal decision not to step aside after being formally asked to do so. That was the response of William H. Rehnquist in 1972 when he was an Associate Justice, and by Associate Justice Antonin Scalia in 2004.
Both Justices noted that, when a lower federal court judge steps aside, a replacement is promptly made. That cannot be done for a Supreme Court Justice, because there are no alternates.
Come March, then, when the health care cases come up for a public hearing, it is probable that all nine Justices will be on the bench to hear them. For cases as important as these are, it would be highly unusual to have them decided by a shortened bench.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.