Virtually every sensible American who has paid attention knows it’s coming: the Supreme Court will have to take up the constitutionality of the Patient Protection and Affordable Care Act, the country’s new healthcare law, aka, ObamaCare, and it will probably do so sooner rather than later.
The case can be heard during the 2011-12 session (from the first Monday in October until late June or early July next year), and the court’s opinion rendered either right before or right after the November 2012 elections. Thus, the healthcare law soon will either be highly praised for its leap forward (with much tinkering still to be done) or reduced to wounded and ignominious historical status, as was the 1875 Civil Rights Act.
With all nine current justices remaining available (and several have been ill lately), Justice Clarence Thomas will 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 (everyone must purchase insurance or pay a penalty) 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.
This 11th Circuit Court ruling (and not by the full 11-member court, just a three-judge panel), balanced a previous 6th Circuit Court decision from Cincinnati a few weeks earlier that had validated the healthcare law. That Cincinnati opinion brought the score of legal victories supporting the law to five, against three for the opposition, one each in federal circuit court, and the others in federal district courts.
One guaranteed trigger for a Supreme Court review of a case is a set of conflicting decisions from the U.S. Circuit Court level. There are at least four other circuit court rulings pending, but the Supreme Court at any time can suspend those decisions and step into the fray itself. Again, the strong likelihood is that the Court will do just that in the very near future.
Enter Justice Thomas. He has hosted a Rush Limbaugh wedding at his house, been the keynote speaker at events hosted and paid for by the Koch Brothers, and been chided for failing to list his wife’s substantial income for the last 13 years from a Tea Party affiliated group overtly opposed to the healthcare law. Justice Thomas has since corrected the public record of his wife’s earnings, and she has stepped down from her position as founder and CEO of the Liberty Central arch-conservative organization. However, she still works for the Heritage Foundation and has promoted lawsuits against Obamacare and actively worked to have the law repealed.
Based on these and other events, Justice Thomas has been petitioned by 74 Democratic members of the House of Representatives to recuse himself from any litigation that may come to the Court that pertains to ObamaCare. Several pundits, bloggers, editorialists and correspondents have echoed that request. Thus far, he has stolidly refused. Ultimately, the decision is his to make.
There are two prevailing standards of judicial conduct at play here, one for the lower federal courts, and one for the Supreme Court. One rule applies to all federal judges, including those on the Supreme Court: no judge shall rule in a case in which his or her impartiality can reasonably be questioned. The specifics here include the justice or any close family member holding any amount of stock in a company that is party to a suit before the judge; or if the justice previously worked for a governmental entity or as an attorney on the case at issue.
The second set of rules, called the Judicial Code of Conduct, applies only to the lower federal courts and stipulates that judges shall not be members of private clubs that discriminate against ethnicities, women or those based on sexual orientation, and judges cannot participate in fundraising activities for groups or individuals. Judges also shall not commit high crimes or significant misdemeanors. Federal judges can be removed through impeachment proceedings.
For the Supreme Court, the only other rule is for justices to police themselves and, when appropriate, to recuse themselves when they think there is a serious question of propriety or conflict of interest in a case. Though that seems too loose and flimsy, it has been the standard rule of conduct since the origins of the Supreme Court.
Informally, however, the chief justice and an associate justice’s other colleagues do converse sometimes on whether the public criticism and controversy of participating in a case raises the specter of a loss of public confidence in the decisions of the Court. In other words, can the public make enough legitimate noise to raise the question of lack of impartiality in a serious and sustained way?
Let the public be forewarned: that is exactly what will have to be done in this situation. Justice Thomas will not willingly recuse himself from the legal consideration of ObamaCare. He has repeatedly stated that he does not see any reason that he should. The rafters will have to resound with outrage, and the blogosphere will have to consistently lay out the case of the justice blind to the absurdity of claiming objectivity in a case in which his beloved partner has invested “24/7 energy, time and interest,” as stated by Justice Thomas.
The Supreme Court has existed this long by being able to police itself and to recoil from situations in which “the presumption of a conflict of interest” is strong and heavy. Although Justice Thomas will have to choose for himself, the public clamor over the issue can certainly persuade the chief justice to ask his colleague to step away from the stage on this one. The Court’s credibility is and always will be larger than any individual’s stubbornness to persist against the grain of the public will. With Justice Thomas on the healthcare case before the Court, judicial impartiality will become a mere stranger of fog and mist in the courtroom. In the Supreme Court, ideology is not supposed to trump evidence. Recusal should not be an option for Justice Thomas, but a necessity.
Professor David L. Horne is founder and executive director of PAPPEI, the Pan African Public Policy and Ethical Institute, which is a new 501(c)(3) pending community-based organization or Non-Governmental Organization (NGO). It is the step-parent organization for the California Black Think Tank which still operates and which meets every fourth Friday.
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