AFJ Calls for Reform of Supreme Court Recusal Process in Anticipation of Expected Controversies Involving Health Care Cases

Washington, D.C., November 14, 2011—Nan Aron, President of Alliance for Justice, released the following statement on the need for the reform of the recusal process of the United States Supreme Court in the wake of the decision by the Court to hear cases challenging the 2010 health care law:

With the Supreme Court agreeing to hear cases challenging the constitutionality of the Affordable Care Act, voices will be heard calling for Justice Clarence Thomas to recuse himself from the case. Serious arguments have been made for Justice Thomas’ recusal and those claims deserve to be fully examined. 

Observers have noted that the justice’s wife, Virginia, has been a leading and vocal crusader against the health care law, and received $500,000 from conservative businessman Harlan Crow to establish the advocacy group Liberty Central to fight against the Affordable Care Act. At the same time, the justice failed to report on his mandatory financial disclosure form the existence of over a million dollars of his wife’s income as an employee of the Heritage Foundation, an active foe of the health-care law.

A federal law, 28 U.S.C. §455, requires all federal judges, including Supreme Court justices, to recuse themselves from any case in which their impartiality “may reasonably be questioned.” The statute identifies specific circumstances when a judge must step aside, such as when he or she has a financial interest in any part of subject matter of the case.

The lack of transparency about the relationship between the justice and benefactors with an interest in the case, the existence of discrepancies in accounts of the justice’s behavior, and his history of failing to disclose his wife’s income, make it difficult to know the extent to which a conflict of interest worthy of recusal may exist. Clearly, however, these issues are of sufficient concern to merit vigorous and complete examination.

The central difficulty of this controversy is the fact that ultimately the only person who will decide whether Clarence Thomas should recuse himself from the cases taken by the Court today is Clarence Thomas himself. Uniquely, the Supreme Court is the only federal judicial body permitted to violate the fundamental tenet of the law that no one should be the sole judge in his or her own case.

Although the recusal statute, and its standards for what constitutes a conflict of interest, applies to the Supreme Court, there currently is no mechanism for review of any justice’s decisions, nor is a justice facing scrutiny required to publicly explain the justification for their actions, one way or another.

The high stakes involved in this case bring into stark relief the need for reform of the Court’s recusal processes. The American people deserve to know that decisions made about the participation of justices on cases that have a profound effect on their lives are based on the law and on the time-honored standard of the appearance of fairness and not on political exigencies or any justice’s own self-regard. Alliance for Justice, members of Congress, over 140 law professors, editorial boards, and other organizations and commentators have called for procedural reforms to make recusal decisions at the Supreme Court transparent and reviewable. We have called for the Court to undertake these necessary changes on its own, but if it is unable or unwilling to do so, Congress should step in.

With calls growing for an examination of Justice Thomas’ fitness to sit on this case, and with demands for the recusal of other justices certain to appear, there has never been a better time to end these kinds of disputes and establish procedures that restore public faith in the integrity of the Court, the justices, and the decisions they make.

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Detailed information about the Supreme Court ethics issue, background documents, and reform proposals are available from Alliance for Justice at www.aquestionofintegrity.org, along with a 16-minute documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court, which details recent controversies over the behavior of some justices and proposes an agenda for reform.

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Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. AFJ works to ensure that the federal judiciary advances core constitutional values, preserves human rights and unfettered access to the courts, and adheres to the even-handed administration of justice for all Americans. It is the leading expert on the legal framework for nonprofit advocacy efforts, providing definitive information, resources, and technical assistance that encourages organizations and their funding partners to fully exercise their right to be active participants in the democratic process. AFJ is based in Washington, D.C.