01
Dec
11

The Supreme Court’s Recusal Problem

Liberals in Congress have called for Justice Clarence Thomas to recuse himself from the review of the health care reform law because his wife, Virginia, has campaigned fervently against it. Conservatives insist that Justice Elena Kagan should remove herself from the case because, they claim, as solicitor general she was more involved in shaping the law than she lets on.

Interest groups keep stirring the fight, though, so far, no party in the case has asked either justice to step aside and experts in legal ethics generally concur that a strong case for recusal hasn’t yet been made. Even so, conflict-of-interest charges diminish the court and draw it further into politics. This latest fight should leave no doubt that when concerns are raised about a justice’s impartiality, it should not be left to that justice to decide whether to withdraw from the case.

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