OK, it is official now–the United States Supreme Court is going to hear oral arguments in March on the continuing controversy and mixed federal court rulings regarding the Affordable Care law, aka, ObamaCare.

At least 26 states with Republican state attorneys general have filed suits against the legality of the law passed by Congress in March 2010. There have been rulings that have said the law is unconstitutional in whole or in part, and the majority of rulings saying the law is constitutional as is.

The Supreme Court will now make a definitive judgment on the issue.

One of the most bothersome corollary issues, however, is whether Justice Clarence Thomas should recuse himself, because of the continued political activities of his wife, Virginia, who is an unabashed member and supporter of the Tea Party, and relentlessly anti-ObamaCare.

Many pundits have been stroking the issue of what seems to be an obvious conflict of interest for more than a year now, and with the recent announcement of the Supreme Court’s agreement to hear the case, the loud voices for Justice Thomas to recuse himself have gotten noticeably louder.

The original letter of 74 Democratic members of the House of Representatives strongly suggesting that a judicial investigation be done of Justice Thomas on this issue had been sent and advocated by former House Member Anthony Weiner.

Last week, on the heels of the Court’s announcement, 52 more Democratic House members wrote and sent a second letter to the Justice Department and to the Judicial Practices Commission urging them to investigate this issue, and why Justice Thomas had not been truthful in filing annual reports of his wife’s consultancy and lobbying activities for Tea Party-related causes.

A judge has to either voluntarily recuse himself or be asked to do so by the Chief Justice. So far, neither has occurred.

The Republicans, meanwhile, have decided to play tit-for-tat. Mitch McConnell and John Kyl, two very prominent politicians, have asked for similar investigations into why new Justice Elena Kagan should not be “forced” to recuse herself. She was U.S. solicitor General in 2010 when the legislation was passed, and had several opportunities to provide legal advice and analysis of the legislation.

She has steadfastly denied any involvement with the law, and has not shown any interest in removing herself from the case.

The case of Justice Thomas seems imminently more of a problem, since the Supreme Court cannot ever lose its onus of objectivity and analytical fairness. The louder and more consistent the noise made over Thomas’ seeming non-objectivity and pre-judgement of the healthcare matter, the more pressure will be brought to bear on Chief Justice John Roberts to ask Justice Thomas to step aside. But if that does happen, the possibility of a 4-4 tie looms large, and that would only exacerbate the existing uncertainly and confusion surrounding the law.

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 stepparent organization for the California Black Think Tank which still operates and which meets every fourth Friday.


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