Conservatives and the New York Times may agree on one thing: it’s time for the Supreme Court to get serious about producing a framework where Justices can, and do, regularly recuse themselves from matters in which they’ve had an interest. For my part, I disagree. Though there’s a better case to be made for Thomas’ recusal than for Kagan’s in the upcoming Obamacare case, I don’t think either is necessary.
As to Kagan, the path from the Solicitor General’s office to the high Court is a common one. The Solicitor General tends to attract the best legal talent, the lawyers most comfortable in front of the Supreme Court and at the bleeding edge of executive law, and those most interested in public service. In qualifications and in character, for those individuals, the Supreme Court is a quite natural next step, which is why the path describes so many justices from Taft to Kagan. Consequentially, the conflict of interest problem is one that we’ve confronted before: Justices are expected to check their prior careers at the door, and historically, they do just that. In the famous case of Youngstown Tube & Sheet Co. v. Sawyer, Justice Jackson’s concurrence survives as a strong limit on executive power, despite the fact that, as FDR’s Attorney General, Mr. Jackson advocated precisely the vision of executive power that he later denied President Truman. It’s an irony that Justice Vinson noted in dissent — he conspicuously and repeatedly cites pro-executive opinions Mr. Jackson authored as Attorney General — but not one that Justice Jackson appears to acknowledge at all. And that’s the way it should be. The Attorney General frames the law as his client would prefer it; a Justice of the Supreme Court frames the law as it is.
We have no reason to expect Justice Kagan would conduct herself otherwise. Even if Ms. Kagan had been involved in discussions on the individual mandate’s constitutionality (which seems unlikely — this whole Tenth Amendment resurgence is utterly new, remember), she will know and should be trusted to follow her predecessor’s example. The alternative — requiring recusal in every case an attorney encountered in her previous life — is untenable.
No such precedent exists to judge the propriety of Justice Thomas’ actions. It is literally a creation of the twenty-first century for a Justice of the Supreme Court to actively take a role in forming the political climate necessary for the creation of a case he will later decide. Imagine if Chief Justice Marshall had taken to talk radio to blast John Adams (“Jefferson should rescind those midnight appointments, just to show those Federalist dogs what’s what!”), and then gone on to write the decision in Marbury v. Madison.
We’d certainly have reason to doubt the legitimacy of the result. But I’m unable to frame a rule that would require Thomas’ recusal, and not set us on a slippery slope towards recusing any Justice with expressed political opinions. Since that outcome is neither tenable nor desirable, we should probably admit that when Obamacare comes before the Supreme Court, the mandate’s fate will be decided by all nine justices.