FantasySCOTUS: The health care law and the recusal of Justices

December 19, 2011

SCOTUS ClipboardIf you’ve made predictions on FantasySCOTUS, you know that to do so, you would drag icons of the Justices into either the “Affirm” or “Reverse” box on the page of the individual case (or issue) that you’re predicting.

However, many of you may have also noticed a third box: “Recuse.”

So far, when I’ve been making predictions on how the Supreme Court will rule on the health care law, I haven’t discussed recusal.

That’s because, unlike some commentators, I don’t think there will be any recusals.

But why do others believe that there will (or should) be?

First, there are many who believe that Justice Kagan will or should because she was the U.S. Solicitor General from March 2009 until May 2010 (after the health care law was signed in March 2010).

The office of the U.S. Solicitor General argues for the federal government in just about every case that the U.S. is a party.

Thus, the argument goes, Kagan should recuse herself because she would have overseen some of the legal defenses to the law’s challenges.

Kagan, however, has said she never expressed a view on the merits of the litigation or strategy to defend the law.

Whether she should recuse herself or not is beyond the scope of this article.

I’m predicting that she will not recuse because Kagan has been very quick to recuse herself from cases where the U.S. is a party at the outset (most recently, she recused herself from Arizona v. U.S., the major immigration law case).

She has not done so with the health care case, so it is unlikely that she will later on.

That may change, however, if the second Justice who is being called on to recuse – Justice Thomas – decides to do so.

That, though, is a slim possibility.

As some quick background, the calls for Thomas’s recusal stem from his wife’s activities with (and income derived from) conservative lobbying groups that call for the health care law’s repeal (for more on this, check out this post).

Again, whether Thomas should recuse is outside of this article’s scope; I’m predicting that he won’t.

I reach this conclusion partly because of how defensive he has been on the issue, but primarily for two other reasons (which also apply to Kagan’s case).

First, any recusals occurring now – after the intense public calls for them – may invoke the image of a Supreme Court subject to popular whims, a total reversal from the Court’s traditional character of insulation from the public.

Second, and perhaps most importantly, there is no legal mechanism either to force a Justice’s recusal or to challenge a decision in which a would-be recused Justice took part.

Given these two factors (and how high-profile the case is), it is extremely unlikely that any Justices will recuse themselves in the health care law decision.

Nevertheless, that unlikelihood probably won’t stop the calls for recusal from both political sides.