The Issue of Justices in Ruling ACA


This year is a big year for health care in that the controversial Affordable Care Act is on the Supreme Court’s docket this spring. But before the briefs are even submitted and the oral arguments made, Supreme Court Chief Justice John Roberts has found it necessary to address the case, albeit in a very roundabout way.

Roberts has addressed the right of a Supreme Court justice to not recuse him or herself from a case. He made his own argument in the report the chief justice writes at the end of each year. And although no names were mentioned in his memo, Roberts was defending the rights of two specific justices.

The Washington Post looked at the controversy surrounding the justices in question, as well as Roberts’ defense of them. The two justices being pressured by opponents and supports of the bill are Justice Clarence Thomas and Justice Elena Kagan.

Thomas’ wife has worked with groups that oppose the law, and as such supporters, including 74 members of Congress, want him to recuse himself. Viginia "Ginni" Thomas spent much of the last two years campaigning against the Obama administration, in particular health care reform.

Meanwhile, when Kagan was the nation’s general solicitor she could have been involved with defending the law. She had discussed a litigation strategy, but there's no certainty with how involved she had gotten.

However loudly the two sides cry, Roberts maintains that justices always give careful consideration to recusal questions before deciding to withdraw from a case.

“A Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” Roberts writes.

The Post, reading between the lines, suggests that Roberts’ statement was clearly that he’s fine with the fact that neither justice has announced any intention to recuse.

This Friday the Obama administration will submit its defense of the individual mandate and on Tuesday its defense expanding the Medicaid program. However, oral arguments for the case don’t begin until late March.


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