Supreme Court on Trial

The decision of the U.S. Supreme Court to expedite the hearing on elements of the Health Care Bill will result in an important result for the Country – long before the Justices actually make their ruling. The Supreme Court of the United States is not only important because they rule on important legal matters and set legal precedents, of equal import is the fact that it also establishes judicial precedents, i.e. they set examples for all judges in all Courts the United States on judicial ethics and conduct. In this particular matter, the decisions to be made by the Court on the continued involvement of Justices Scalia and Thomas will send one of two very different messages to the Country.
Legal scholars (and, one could argue, common sense alone) argue that the apparent conflict of interest of Scalia and Thomas should result in their being recused on the matter. The obvious conflict of Justice Thomas is a no-brainer: his wife is a paid activist working for the Tea Party who has repeatedly attacked the Health Care Law as unconstitutional. This is a conflict on at least two levels. First, the financial interests of Justice Thomas via his wife can be affected by his decision. (It should be noted that Justice Thomas had failed to disclose income from his wife, as required by ethical standards for judges.) Secondly, Justice Thomas has stated on several occasions that he and his wife agree on everything, including their politics. This admission is, in effect, an admission that he has already decided the case before considering the legal issues are considered.
Justice Scalia’s conflict stems from his association with the lead attorney presenting the case against the Law. Just a few days ago, Justice Scalia (and Thomas) attended a dinner of the Federalist Society literally sitting at adjoining tables. Judicial guidelines prohibit any behavior that even gives the appearance of partiality to either side of a dispute. Belonging to the same political association and sharing dinner with each other certainly suggests partiality and improper contact with a litigant.
Both Scalia and Thomas are known for their disregard of legal precedent and ethical precedents and neither could be expected to do the proper thing and recuse themselves. The Administration should immediately make a motion to recuse them. This means the burden and the responsibility of the decision falls on the Chief Justice. However, make no mistake that the decision of Justice Roberts will have a resounding and potentially disastrous effect on the confidence of the Country in the Judiciary. To recuse Justices Scalia and Thomas from this important decision would reassure the Country that the long-standing practice of the Courts to ensure judicial fairness and propriety remains intact. To fail to recuse Justices Scalia and Thomas would be a clear signal that the Courts can no longer be trusted to fairly administer true Justice.