Justices Kagan, Thomas Refuse to Recuse Themselves From Health Care Law Case

Normally, order documents--released after the nine justices hold a private conference to look at the petitions for a case to be heard--note when a particular justice decides to be recused from a case.

In Monday's order, Justice Elena Kagan recused herself from several cases. Unfortunately for her conservative critics, none of them included the challenges to Obamacare.

Meanwhile, Justice Clarence Thomas also gave no sign that he would heed his liberal critics' requests and recuse himself from deciding the fate of the Affordable Care Act.

Two Justices Highlighted by Groups

These two justices have been targets of political organizations and elected officials who say they cannot view the Affordable Care Act cases before them impartially.

For Kagan, her time as the Obama administration's chief Supreme Court lawyer is Exhibit A in proving that she is biased. Thomas' failure to report on disclosure forms $1.6 million his wife Virginia received from conservative anti-health care reform groups is the grist for accusations that he has a conflict of interest.

Despite a statute detailing when federal judges should be disqualified from a case, the nine justices are bound by their own sense of ethics. They have complete discretion in deciding when recusal is necessary.

Ethical issues raised from Thomas' disclosure forms led more than 100 law professors to call for justices to be bound by the Code of Conduct for United States Judges.

The fundamental principle that 'no man may be a judge in his own case' was articulated by Lord Coke in the seventeenth century, yet inexplicably we still allow Supreme Court justices to be the sole judge of themselves on recusal issues, the March letter read.

Kagan's alleged bias towards the Affordable Care Act stems from her time as Obama's solicitor general, who argues for the administration in front of the Supreme Court. Since her nomination, Kagan has repeatedly denied that she was involved in any White House discussions about Affordable Care Act-related litigation or legal strategy.

E-mails released from a Freedom of Information Act request showed that she chose her deputy, Neal Katyal, to be the lead in health care reform litigation for the Office of Solicitor General. Those emails did nothing to quell the demand that she recuse herself.

At a Senate Judiciary Committee hearing on the U.S. Department of Justice, Sen. Mike Lee of Utah asked about Kagan and health care reform.

Attorney General Eric Holder said that the administration made efforts to insulate the future Supreme Court justice from any discussions.

I can tell you that certainly, one of things that we did while she was solicitor general was physically-physically--literally move her out of the room whenever a conversation came up about the health care reform legislation. Holder testified. I can remember specific instances in my conference room when we were going to discuss that topic. We asked Justice Kagan to leave and she did.

A group of Democrats in Congress, meanwhile, had urged Thomas to recuse himself for his failure to report his wife's income from conservative groups opposed to health care reform. They also asked an administrative agency for the judicial branch to get the Justice Department to investigate.

A group called Health Care For America Now say that organizations determined to repeal the health care reform law have been filling his family bank account for years.

The group has also criticized Thomas for appearing at events organized by conservative groups.

Justice Thomas personally has aligned himself with political activists and organizations dedicated to thwarting the law, HCAN Executive Director Ethan Rome said Thursday. There is simply no way that Justice Thomas can render a fair decision in this important case.