This all makes it all the more notable that, this morning, the Year End Report on the Federal Judiciary is getting a lot of attention and coverage from most major newspapers. That has everything to do with what Supreme Court Chief Justice John Roberts decided to write in the 2011 report. His 16-page memo amounts to a full-throated defense of Supreme Court justices not recusing themselves from controversial cases, such as the health reform lawsuit, even in the face of intense public or congressional pressure to do so.
His words are especially relevant with a legal challenge to Affordable Care Act on the docket for this spring. The law’s supporters and opponents have pressured two Supreme Court justices to sit out the case, due to potential conflicts of interest. Health reform supporters have focused on petitioning Justice Clarence Thomas to recuse himself because of the work that his wife Ginni Thomas has done with groups that oppose the law. Supreme Court Justice Elena Kagan faces similar pressures from many health reform opponents, who argue she may have become involved with the law’s defense as the nation’s solicitor general two years ago.
As far as judicial ethics go, recusals are a bit of a unique issue for the Supreme Court to handle. The decision of a lower court judge to sit out a case, for any given conflict of interest, can be reviewed by a higher court. But the Supreme Court doesn’t have that kind of review - it is the highest court - so recusals there do not undergo that extra level of scrutiny. As Roberts puts it, in serving in the Supreme Court, “The Justices serve on the Nation’s court of last resort.”
Roberts doesn’t mention Kagan or Thomas in his report. But it doesn’t take much reading between the lines to understand his 16-page memo as a full-throated defense of their right not to recuse from hearing the health care reform challenge.
“A Justice,” Roberts writes, “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 of the need to recuse before deciding to withdraw from a case.” He then moves onto this key paragraph:
I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.
That’s Roberts making a pretty strong statement, albeit in polite legalese: His Justices haven’t announced any intention to recuse, and he’s fine with that.
Roberts didn’t have to focus so narrowly on this one issue, nor did he have to take on a controversial topic in his year-end report. In fact, it was actually a bit abnormal for him to do so. “Customarily, the Chief Justice’s annual assessment of the state of the judiciary is focused on less controversial issues, and seldom on a single topic,” SCOTUSblog’s Lyle Denniston writes.
This is probably the opening to a wave of news about the health reform law’s legal challenge that’s about to start. Oral arguments aren’t until late March, but a handful of briefs are due to the Supreme Court this coming Friday, on Jan. 6, including the Obama administration’s defense of the individual mandate. The White House must also file another brief next Tuesday, to defend the health reform law’s expansion of the Medicaid program. Then, all the way up through oral arguments in March, it’s pretty much a non-stop schedule of briefs, responses and previews of how the law’s allies and detractors will make their case in front of the country’s highest court.