WASHINGTON — As the Supreme Court prepares to consider one of the most closely watched cases in its recent history, two of its nine justices — one on the left and one on the right — are being urged to step aside and let their colleagues determine the fate of President Barack Obama’s health care overhaul without them.
Conservatives want Elena Kagan, the newest jurist on the court, off the case because of her ties to the Obama administration. Liberals would like to see Clarence Thomas to excuse himself because of his wife’s connection to advocacy groups that want the law overturned.
Neither side is likely to get its wish. Supreme Court justices pride themselves on their impartiality and rarely recuse themselves unless they have a direct financial stake in the outcome of a case. And the power to make that decision rests with each individual justice alone.
But that doesn’t mean either side won’t keep the pressure up. Last month, Senate Minority Leader Mitch McConnell and Charles Grassley, the ranking member of the Judiciary Committee, sent Attorney General Eric Holder a letter demanding more information about Kagan’s involvement with the health care legislation while she served as U.S. solicitor general.
The bill was passed by Congress and signed into law in March 2010, while Kagan was still in the solicitor general’s office, and was immediately under threat of constitutional attack in the courts. At the same time, Kagan became aware that Obama was considering her to replace Justice John Paul Stevens on the high court and has said that she began to scale back her involvement in ongoing matters in her office.
Kagan was nominated in May of that year. During her confirmation hearing, she testified that she played a minimal role in the Justice Department’s efforts to develop a litigation strategy to defend the law, known as the Patient Protection and the Affordable Care Act. But seizing upon documents obtained in a Freedom of Information Act request, Republicans contend she may have been more deeply involved than she let on.
House Democrats have been calling for Thomas to step aside from the health care suit because his wife, Virginia Thomas, has worked for several conservative groups that have a stake in the outcome of the litigation. Virginia Thomas helped found one tea party affiliate, Liberty Central, that has been a fierce opponent of the law.
Earlier this year, 74 Democrats sent a letter to Thomas asking him to recuse himself because of his wife’s work as an advocate and lobbyist on the issue, citing as well Thomas’ failure to report the sources of his wife’s income on annual disclosure forms.
Thomas, along with Scalia, was also recently criticized for attending a dinner sponsored by an organization of conservative lawyers that was sponsored by several law firms with an interest in the outcome of the health care fight.
The frisson over recusal has been generated not only because of the intense interest on the legality of the health care law’s individual mandate to buy health insurance, but also the expectation of a court likely to be divided along a 5-4 line. That means the exit of one justice could produce a deadlock.