U.S. Supreme Court Chief Justice John Roberts, though not addressing any specific case, implicitly defended Justices Elena Kagan and Clarence Thomas from calls that they recuse themselves from the Obamacare case, suggesting as well that it would be inappropriate for Congress or the other members of the Supreme Court to attempt to mandate a recusal.
“I have complete confidence in the capability of [all] my colleagues to determine when recusal is warranted,” Roberts wrote in his 2011 Year-End Report on the Federal Judiciary, released this evening. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”
Though he prefaced his comments by claiming not to discuss “ongoing debates” or cases, Roberts acknowledged that his remarks on Supreme Court justice ethics were prompted by “issues that have recently drawn public attention.” Kagan has faced recusal calls given the support she expressed for Obamacare in recently-released emails from her time as Solicitor-General, and from the possibility that she was briefed or participated in meetings about how to defend Obamacare before the Supreme Court. Liberal critics have suggested Thomas should recuse himself because of his wife’s public opposition to Obamacare, in her capacity as a Tea Party leader.
Roberts said that public outcry, partisan concerns, and fear of criticism should not affect a justice’s decision to withdraw from a case. “Such concerns have no role to play in deciding a question of recusal,” he wrote.
He also explained why justices should avoid recusing themselves when possible. “[T]he 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,” he wrote. “A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”
The chief justice implied that Congress could not require a Supreme Court Justice recusal — “the limits of Congress’s power to require recusal have never been tested,” he noted — and added that other Supreme Court justices should not try to wield that power. “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,” Roberts warned.
Roberts assured his readers that the Supreme Court justices “give careful consideration to any recusal questions that arise in the course of their judicial duties.” He concluded that, “at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic.”
