It has been said that Justice Kagan’s most glaring ethical lapse since joining the Supreme Court was her decision – and it was hers alone, remember – not to recuse herself from NFIB v. Sebelius, better known as the Obamacare case.
She participated even though she was solicitor general in the Obama White House at a time in which the law was being crafted and discussed regularly. Public records from that time reveal she assigned a deputy in her office to prepare a defense to any legal challenges to the law, and at times she seemed a little too careful not to mention the law by name in e-mail correspondence.
The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Justice Kagan and her colleagues to be acting improperly, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.
Fix the Court is calling on Chief Justice Roberts to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.