Chief Justice Roberts Defends Kagan, Thomas Recusal Decisions On Health Care Lawsuit

The Chief Justice Of The United States defends his colleagues.

Without mentioning them by name, Chief Justice Roberts effectively defended the decision by both Justice Thomas and Justice Kagan that they did not need to recuse themselves from the Supreme Court’s upcoming deliberations over the constitutionality of the Affordable Care Act:

In the face of a growing controversy over whether two Supreme Court justices should disqualify themselves from the challenge to the 2010 health care overhaul law, Chief Justice John G. Roberts Jr. on Saturday defended the court’s ethical standards.

The chief justice’s comments came in his annual report on the state of the federal judiciary. In it, he made what amounted to a vigorous defense of Justices Clarence Thomas and Elena Kagan, who are facing calls to disqualify themselves from hearing the health care case, which will be argued over three days in late March. He did not, however, mention the justices by name.

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Chief Justice Roberts wrote. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given ad-vice or expressed an opinion “concerning the merits of the particular case” or when their “impartiality might reasonably be questioned.” For lower court judges, such a decision can be reviewed by a higher court, but the Supreme Court has no such review.

Chief Justice Roberts said the Supreme Court’s unique status made it impossible for the justices to follow the practices of lower-court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.

“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case,” he wrote.  “Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”


Chief Justice Roberts said the justices also comply with the recusal law, though he added that “the unique circumstances of the Supreme Court” must be taken into account.

“There is only one major difference in the recusal process: There is no higher court to review a justice’s decision not to recuse in a particular case,” he wrote. “This is a consequence of the Constitution’s command that there be only ‘one Supreme Court.’ ”

That also means, he added, that recusal at the Supreme Court is particularly problematic.

“If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place,” he wrote. “But the Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the court must sit without its full membership.”

“A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy,” he added. “Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

I’ve written about the controversy raised mostly by left-wing pundits regarding the alleged reasons Thomas needs to recuse himself and the questions raised by those on the right about Kagan’s involvement with the health care litigation while she was still Solicitor General. While I think the issues surrounding Kagan remain partially unanswered because of the Department of Justice’s refusal to release all the email and correspondence related to the matter, I think Roberts gets it about right here. The issues surrounding a Supreme Court Justice’s recusal are far more complicated than those that take place District Court or Court of Appeals level, not the least because there is no mechanism to replace a Justice who has recused themselves and the absence of even one member of the Court could impact the outcome of the case significantly.

As James Joyner noted back in 2010, Senator Patrick Leahy proposed a solution to this issue that would involve retired Supreme Court Justices taking the place of a Justice that recused themselves so that the Court would always have a bench of nine justices to hear any case. There’s a certain logic to this, of course. After all, retired Justices like Sandra Day O’Connor, David Souter, and John Paul Stevens are all already familiar with the procedures and practices of the Court and would have little trouble fitting in to hear a case on an ad hoc basis. Additionally, retired Supreme Court Justices are already used to fill in for Judges at the Court of Appeals  level, and sometimes even the District Court level. Justice O’Connor has done this many times since she retired in 2006. At the same time, though, Justice O’Connor is 81, and Justice Stevens is in his 90s, age is certainly a factor worth considering here.  Another possible idea would be to draw a replacement justice at random from among the Chief Justices of the Courts of Appeal (excepting, of course, the Court form which a particular appeal originated). Both solutions could potentially require Constitutional Amendments to be effective, though.

At this point, though, I think the Chief Justice’s words ring true. Justice Thomas and Justice Kagan, both of whom have recused themselves from cases in the past, have made the determination that they don’t need to do so this time. That decision should be respected.


FILED UNDER: Healthcare Policy, Law and the Courts, US Politics, , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. MBunge says:

    “That decision should be respected.”

    If the Supreme Court is going to continue to play such a decisive role in political issues, such deference is neither appropriate nor wise. Or do you think the 5 justices who decided to stop counting votes for President in 2000 Florida and the 4 who wanted to keep going would have made exactly the same decision if it had been Al Gore who wanted to shut things down and George W. Bush demanding every vote be counted?


  2. @MBunge:

    The Supreme Court is a co-equal branch of government, There is no other entity that could judge the decision of an individual justice to recuse themselves.

  3. steve says:

    Most of us stopped believing in the impartiality of the Supreme Court long ago. Impartial during the day and hobnobbing with extreme partisans by night just does not pass the smell test.


  4. Hey Norm says:

    Given Bush v. Gore and the Citizens United ruling not much should really be expected of the Supreme Court anymore.
    I say we simply engrave “”Our consideration is limited to the present circumstances” on the frieze above the entry to the Supreme Court.

  5. @steve:

    Abe Fortas was LBJ’s best buddy.

    Felix Frankfurter was and FDR adivsor on the very New Deal projects he would later rule on when he became a Justice.

    Of course, those were Democrats so I suppose it was okay

  6. @Hey Norm: We cannot say that the system is broken because of two rulings that we don’t agree with. This is not some illuminati-like conspiracy theory, where everything is decided by shadowy figures we can’t see in the background (and no, the SCOTUS isn’t “shadowy”, unless you count none of them making the Fox News or MSNBC circuits “shadowy”; they should be separated completely from the political process as much as possible). The arguments that liberals make in regards to Bush v. Gore and Citizens United (I will argue Doug until I’m blue in the face on that ruling) are the same ones conservatives make with Roe v. Wade, Texas V. Johnson, and Lawrence v. Texas (aka: The Case That Perry Forgot).

    When people say that the SCOTUS is broken, they’re just saying the SCOTUS did something they personally disagree with. Frankly, to me, the system works as close to perfectly as can be expected (Brown v. EMA comes to mind), even in cases where we don’t agree with the results.

  7. Hey Norm says:

    @ CB…
    C’mon…a ruling by the Supreme Court in which they say don’t ever refer to this ruling again…compares somehow to Roe v. Wade? That doesn’t even pass the giggle test.

  8. @Hey Norm: I’m going to have to ask you to justify that statement.

  9. Hey Norm says:

    @ CB…
    When the court wrote: “”Our consideration is limited to the present circumstances” they said don’t ever look at this ruling as precedent…in other words, don’t take it seriously.
    The other ruling I didn’t mention…which came from the liberal side of the court was the New London Eminent Domain ruling…so the court is dysfunctional from all perspectives.
    Look at the impact the Citizens United ruling is having in Iowa. That’s the definition of activism…

  10. Contracts says:

    @Hey Norm: Dames & Moore v. Regan?

  11. de stijl says:


    Never argue with dames. It’s a no-win situation.

  12. Another problem of using retired Justices in the place of Justices that recuses themselves from a case is that there are times when there are no retired justices available.

  13. @Hey Norm: Yes, the New London ruling was a bad one. But go back through history and you will find other bad rulings; I would argue Korematsu v. United States was one of the worst.

    But when the stakes are this high, every mistake is going to be magnified. Hell, some Constitutional amendments are bad. One of them was so bad it had to be struck down (Prohibition). So no system is perfect, and there are some high profile mistakes under the SCOTUS’s rule throughout history. However, those “ah, crap” rulings don’t override the many, many proper ones. Our system – at its foundation – is still the best in the world.

  14. Kylopod says:

    >But when the stakes are this high, every mistake is going to be magnified.

    But Bush v. Gore, more than any other ruling in recent history, absolutely broke down the pretense that the Court was anything but a partisan body. Not legal scholars with partisan biases, but people who would abuse their position to effect a partisan goal they knew was unrelated to any of their so-called legal views. That’s why the statement “Our consideration is limited to the present circumstances” is so significant. It was essentially an admission that they knew their legal reasoning was indefensible and only cared about the end result of the decision.

    That’s why so many of us refuse to believe the ACA case will be decided based on the justices’ actual views of the Commerce Clause. It will be decided on one basis and one basis only: how committed the conservative justices are to striking a blow against a Democratic administration’s signature policy achievement, and how willing they are to accept the full consequences of such a move (e.g. taking away insurance from millions of young adults). That’s it. The constitutional issues are absolutely irrelevant to the outcome of this case, and if you don’t think so, you’re sticking your head in the sand.

  15. Gustopher says:

    Bush v. Gore did a lot of damage to the Supreme Court’s reputation as an apolitical body.

    But, it was hardly apolitical before Bush v. Gore, it just pushed it into the open. Does anyone doubt that abortion is a political question that shapes every nomination and confirmation?

    There are reasonable arguments to be made to either legalize abortion, ban it completely, or leave it up to the states, but the justices are being chosen in large part based on which of these reasonable arguments they will find most reasonable.

  16. gVOR08 says:

    The argument for Kagan’s recusal was always pretty thin. It was raised only to provide cover for Thomas failure to recuse himself. It’s working.

  17. @gVOR08:

    The argument for Kagan’s recusal was far stronger than the nonsense raised about Thomas. If she indeed had provided legal advice related to the Administration’s defense of the lawsuits of the lawsuits against the PPACA then The Canon of Judicial Ethics would be pretty clear on her need to recuse herself.

    Unlike you with regard to the incredibly weak argument regarding Justice Thomas apparently, I’m willing to accept her determination that recusal is not necessary

  18. EMRVentures says:

    I think the case for both recusals is weak, but especially Thomas’. Certainly, his wife participates in an active way in federal politics, but really, is he going to vote in favor of an overturn of Obamacare because it may increase or maintain his wife’s income? I don’t think so. Justice Thomas has been practicing on the Supreme Court for two decades now. His judicial philosopy is set, disagree with him or not. He makes $213,000 a year, and it takes a Constitutional amendment to lower that, or to impinge his pension. He made up his mind a long time ago about Obamacare, and not because his wife is a lobbyist. (For the record, I think J. Thomas may surprise us when that case is argued)

    The Kagan case is also thin. We should eliminate Supreme Court justices from adjudicating a case simply because in their previous (hopefully, distinguished) professional life they’ve had occasion to consider an issue previously? So what if she worked on the issue as solicitor. One would hope she worked on a great many cases, and learned therefrom.

    One of the saddest spectacles in modern politics is Supreme Court nominees taking an oath and then swearing they’ve had no occasion in their life to every consider Roe v Wade, because not tipping your hand on RvW is a prerequisite of being confirmed.

    For God’s sake, these people have thought about this stuff. A lot. Let’s stop pretending they haven’t.

  19. MBunge says:

    @Doug Mataconis: “The Supreme Court is a co-equal branch of government”

    If the Supreme Court is a co-equal branch of government, what’s wrong with treating it as such instead of as some Delphic body whose pronouncements are beyond question?


  20. Anderson says:

    from among the Chief Justices of the Courts of Appeal

    Just fyi, chief judges, not “justices.” The only federal “justices” are those on the Supreme Court. (Pretty sure you know this and just mistyped.)