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Health care and the high court

By Editorial,

EVEN BEFORE the Supreme Court agreed to hear a challenge to President Obama’s health-care program, outside interest groups were angling to elbow out the justices they fear would not rule their way.

Liberal groups argue that Justice Clarence Thomas should disqualify himself because of his wife’s work on behalf of conservative groups that opposed the legislation. Conservatives raise questions about Justice Elena Kagan’s impartiality because she was the president’s solicitor general while the legislation and its legal defense were being crafted.

The case involving Justice Thomas presents the easier call. Judges should not be saddled with the viewpoints of their spouses. Nor need they step aside unless the spouse is directly involved in the case or stands to profit from the matter. Neither is true for Virginia Thomas, who has worked for several conservative groups, including the Heritage Foundation and Liberty Central, which she helped found in 2009 but has since left.

Justice Kagan’s situation presents a more delicate and difficult question. Justices are bound by law to disqualify themselves “in any proceeding where his impartiality might be reasonably questioned.” For those, like Justice Kagan, who served in the executive branch before assuming the bench, this requires recusal in cases in which the government lawyer “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Justice Kagan and the Obama administration have said that she was “walled off” from health-care matters in early March 2010 after she was informed that the president wanted to consider her for an expected high-court vacancy. In sworn testimony and in response to senators’ written questions during her 2010 confirmation hearing, then-Solicitor General Kagan said she never offered nor had she been asked her views on the legality or constitutionality of the health-care reform. She said she neither approved nor helped to prepare internal documents or court filings related to the bill. She testified that she attended one meeting in which the health-care program was mentioned but not substantively discussed. Most legal ethics experts agree that these facts do not require recusal.

But then there’s this: “I hear they have the votes, Larry!! Simply amazing.” Larry is Laurence Tribe, a colleague at the Justice Department when this e-mail was sent in late March 2010, on the eve of the health-care bill’s passage. The specter of a future Supreme Court justice appearing to cheer the success of legislation she would one day be asked to judge does not square with the Platonic ideal that those on the high court should have no preconceived notions. But is this celebratory e-mail enough to force Justice Kagan’s recusal? We do not, on balance, believe so.

Justices are not blank slates. They come to the court with personal views on a range of policy and political issues. They have a duty to decide cases, absent an incurable conflict; this is especially true at the Supreme Court, where, unlike lower courts, no other judge may fill the void created by recusal. But they must set aside personal preferences when deciding matters of law. We trust that Justices Thomas and Kagan will do that.

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