Kagan’s participation in the health-care case has been challenged because she was solicitor general in the Obama administration when the Affordable Care Act was passed. Thomas’s impartiality has been questioned because his wife has been an outspoken critic of that legislation.
This follows a public request from Common Cause Chief Executive Bob Edgar, a former U.S. representative from Pennsylvania, to Attorney General Eric H. Holder Jr. that the administration seek to vacate the judgment in Citizens United. Edgar’s reasons include that Thomas should have stepped aside because of federal law requiring a justice not to participate when “he knows that . . . his spouse . . . has a financial interest in the subject matter in controversy.” Virginia Thomas reportedly had such an interest in her PAC, which benefited from the Citizens United decision.
Critics of both justices have drawn support from a letter that 138 law school professors sent to the chairmen of the House and Senate judiciary committees and a petition bearing 100,000 signatures lobbying the Supreme Court for a procedure to review a justice’s refusal to recuse. They rely on the high court’s 2009 decision in Caperton v. A.T. Massey Coal Co. Inc., which said that due process was violated by a West Virginia Supreme Court justice who refused to recuse himself from a case involving a major campaign contributor.
Starting with the 17th-century principle from Lord Coke that “no man can be a judge in his own case,” Justice Anthony M. Kennedy wrote in the Caperton decision that a judge “accused of bias” should not be “the sole trier of fact” on “inquiring into actual bias.” Why wouldn’t that rationale apply equally to require review of a Supreme Court justice’s decision to sit under questionable circumstances, at least a review by his or her colleagues?
Roberts’s year-end writing argues against disqualification on the ground that an eight-person court would be unable to decide cases in the event of a 4 to 4 split. That problem is solvable by a suggestion that Justice John Paul Stevens made during a meeting we had in his chambers on April 29, 2010 — to have a retired justice replace the absentee. In any event, a 4 to 4 vote that results in no decision is preferable to a tainted decision. Roberts also wrote that the individual justice should remain the sole decider on participation because the Constitution created the Supreme Court without any review for its decisions. Yet the court itself could structure a review process.