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.
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.
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.
— The Washington Post