ObamaCare: Justice Thomas stubborn refusal to recuse himself

Ph.D. | 3/28/2012, 5 p.m.

In September, 2011, I wrote an Ourweekly article about Justice Clarence Thomas and his refusal to recuse (aka, excuse) himself from participating in the Supreme Court's review of President Obama's signature piece of legislation, the Patient Protection and Affordable Care Act, aka, ObamaCare. It is a very major piece of legislation that previous presidents all the way back to Jimmy Carter have tried to get passed, but to no avail. It is also the centerpiece of Republican opposition to Mr. Obama's re-election.

After laying out a substantial part of the argument advocating Justice Thomas' recusal, I made the firm prediction that he would not rise to the occasion and do the honorable thing, even though his presence on the case runs the grave risk of diluting the public's confidence in the court and making the court lose face.

Well, as of Monday, March 26, when the court began hearing oral arguments, there sat Thomas proudly silent, as is his habit, and fully engaged.

On Monday, the court heard arguments about whether it even had jurisdiction in the case yet. If the individual mandate is a fee, which the federal government says it is, then the court can hear it now. If the individual mandate, i.e., the order for everyone to buy insurance or pay a fine for not doing so, is deemed a tax for insurance coverage, the court cannot hear the case until sometime in 2015, after someone has to pay the tax and sue because of it. Even then, it must wind its way through the labyrinthine legal system to get back to the Supreme Court on a writ of certiorari appeal.
Clearly, this case and how it will be handled is major news. If the court chooses to rule on the case this term, rather than dismissing it for now on technicalities, the implications for President Obama's legacy and even his re-election chances, let alone the future of healthcare reform in the USA, is really huge and priceless. Indeed, one of the changes the president promised to bring was major healthcare reform.

Here is a portion of my previous article repeated, for emphasis:
With all nine current justices remaining available (and several have been ill lately), Justice Clarence Thomas can certainly have a big influence in the decision, although the swing vote in all probability will again be Justice Anthony Kennedy, appointed many years ago by President Ronald Reagan, who has remained a very strong advocate of personal liberty.

The individual mandate upon which the healthcare law is based will be heavily scrutinized by all the justices, but particularly Kennedy. A 5-4 decision is a very, very distinct possibility, with the continued court adherence to Congress's expansive abilities to provide economic legislative policy for the U.S. through the Commerce Clause in Article I of the U.S. Constitution in serious question.

Already, based on 26 Republican attorneys general filing suits against the law, at least three significant rulings have been handed down, the latest one being the 2-1 vote in August of the 11th Circuit Court in Atlanta. One significant aspect of this vote was the participation by a justice appointed by President Bill Clinton. Beforehand, virtually every decision rendered against the healthcare law had been by Republican-appointed judges, making the legal wrangling over the law very partisan.