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.

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 has suspended those decisions and stepped into the fray itself.

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.

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? Apparently it either could not or simply decided this was not the issue about which to scale the mountain. Thomas currently sits smiling in his court chair as the case arguments are now being heard.

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. The court’s credibility is supposed to always be larger than any individual’s stubbornness to persist against the grain of the public will, and it is rather surprising that the chief justice did not intervene and ask his colleague to stand down from this case.

I still predict that if the case actually goes forward to a real ruling, rather than earning a dismissal over jurisdiction, 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. With this case, the court will not be able to wash away the conflict of interest stain. With the Citizens United case ruling already part of this court’s portfolio, and threatening to make a mockery of the presidential race this year, one more self-inflicted wound will be very hard to sustain.

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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