The 'ObamaCare' case: Should Elena Kagan and Clarence Thomas sit out?

The president's signature legislative achievement heads to the Supreme Court, and the Left and Right both accuse justices of conflicts of interest

Justice Elena Kagan and President Obama
(Image credit: Chip Somodevilla/Getty Images)

As the Supreme Court prepares to decide the fate of President Obama's health care reform law, liberal and conservative groups are complaining about bias on the nation's highest court. On the Right, critics say liberal Justice Elena Kagan should recuse herself because she was "a cheerleader for ObamaCare" in her previous job as Obama's solicitor general. On the Left, proponents of the law say conservative Justice Clarence Thomas should sit this one out because of his wife's involvement with Tea Party groups demanding the law's repeal. Should either of the justices bow out?

Kagan should sit this one out: The case for Kagan recusing herself from the "ObamaCare" case "would seem to be an open and shut one," says Rick Moran at The American Thinker. When she worked for the Obama administration, she sent an email cheering the news that Democrats had the votes to pass the Affordable Care Act, calling it "simply amazing." But unfortunately, short of a "smoking gun memo" proving that she actually helped craft the administration's legal defense of the law, I expect Kagan to participate in the case next year.

"Kagan emails show she was 'excited' about ObamaCare passage"

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Thomas is the one on shaky ethical ground here: If there's an "obvious conflict of interest" in this case, says George Zornick at The Nation, it's in the Thomas household. In 2009, Thomas' wife, Virginia, founded a conservative nonprofit dedicated to fighting Obama's "hard-left agenda." Ms. Thomas continues to agitate for the health care law's repeal, and 74 members of Congress have signed a letter asking Thomas to recuse himself from the case. It's hard to say whether Ms. Thomas's politicking is a cause or symptom of her husband's "deep bias and antipathy towards progressive causes" — but it's also hard to argue there's no conflict here.

"Clarence Thomas vs. legal ethics"

These complaints are pure politics: "I am generally one of the most pro-recusal scholars you can find," James Sample, a professor at the Hofstra University School of Law, tells The Washington Times, "and yet I think in this instance," those trying to push Kagan and Thomas aside are just "opportunists" seeking a political edge. Thomas' "judicial approach is well known" and unlikely to be swayed by his wife's work. And Kagan's "extraordinarily limited exposure to the health care policy" as solicitor general should be "a nonissue."

"Health case raises recusal questions for Kagan, Thomas"

This fight may leave a cloud over the ruling: Everybody can save their breath, because "neither Thomas nor Kagan has given any sign of stepping away from the case," says Tim Louis Macaluso in the Rochester, N.Y., City Paper. The legal standard "to determine a conflict of interest is a bit vague," so both seem free to press on. Still, it would really be a shame if the public senses "even a hint of impropriety in the Supreme Court's decision."

"Supreme Court hearing on health-reform raises concerns"

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