Gavel Grab

Supreme Court Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case, Justice at Stake said in a statement issued today.

The justices are not required to detail their thinking about recusal. But given the heightened attention paid to the case, JAS said, “public explanations of their reasoning would increase understanding of the court and promote public trust and confidence.” It added, “We strongly urge them to consider putting their reasoning into the public record.”

JAS said it was making its recommendation “carefully and with caution,” and it underscored two factors that require balancing: Justices have the final word about whether to hear a case or to recuse; and a key goal of recusal is to assure the public that court proceedings are fair and impartial. The JAS statement explained:

“When a case rises to the top of the public’s consciousness – to a level that is  likely to affect public confidence in the court system – there are instances where the public benefits from hearing a justice’s reasons for staying on a case or stepping aside. This heightened public interest can exist even if lawyers in the case do not formally seek a judge’s removal.”

No parties to the case have asked for either justice to recuse, but dueling pleas have been made by political groups and individuals (see Gavel Grab). If a party to the case formally seeks a justice’s recusal, JAS urged that the justice give a written decision and explanation of his reasoning.

“There is a risk that recusal demands will be pursued for political reasons in high-profile cases. Many legal ethics experts do not believe that recusal is warranted for either Justice Kagan or Thomas,” the JAS statement cautioned. JAS concluded:

“But given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by Justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial—adhering to the law, the Constitution and relevant Supreme Court precedent.”

JAS is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. To learn more about the importance of recusal, see the JAS issues page on the topic.