None of the parties in the case has asked the justices to excuse themselves. But underlying the calls on both sides is their belief that the conservative Thomas is a sure vote to strike down President Barack Obama’s health care law and that the liberal Kagan is certain to uphold the main domestic achievement of the man who appointed her.
Republican lawmakers recently have stepped up their effort against Kagan, complaining that the Justice Department has not fully revealed Kagan’s involvement in planning the response to challenges to the law.
Kagan was Obama’s solicitor general, the administration’s top Supreme Court lawyer, until he nominated her to the high court last year.
“The public has a right to know both the full extent of Justice Kagan’s involvement with this legislation while she was solicitor general, as well as her previously stated views and opinions about the legislation while she was serving as solicitor general,” the House Judiciary Committee chairman, Rep. Lamar Smith, R-Texas, said Tuesday in a letter to Attorney General Eric Holder.
At the same time Democrats have said Thomas has a conflict of interest stemming from the work of his wife, Virginia, with several groups that opposed the health care overhaul.
“From what we have already seen, the line between your impartiality and you and your wife’s financial stake in the overturn of health care reform is blurred,” 74 Democrats wrote Thomas in February.
The lead writer was Anthony Weiner, the New York Democrat who resigned from Congress in June over his use of Twitter to send explicit photos of himself to women.
Neither justice is budging – the right decision, according to many ethicists and legal experts.
The campaigns against the justices are partisan, suggesting to some legal experts that the complaints are less about perceived conflicts than the outcome of the health care case.
“They are not doing it in the dark about how they think the justices will rule,” said University of Notre Dame law professor Richard Garnett.
Looking at the claims made against Thomas and Kagan, Garnett said, “I don’t think there’s really a plausible case that either of these two justices should feel the need to recuse themselves.”
Interest groups and lawmakers on both sides have sought to paint a picture of a justice who is hopelessly compromised and has no choice but to recuse, the term for a judge stepping out of a case. They also say there is no basis for the justice with whom they agree to step aside – Thomas for the conservatives, Kagan for the liberals.
“She has been exceedingly careful, unlike Justice Thomas,” Nan Aron of the liberal Alliance for Justice said of Kagan.
Kagan was as Obama’s solicitor general before he nominated her last year to take the seat of Justice John Paul Stevens.
She testified during her confirmation hearing in 2010 that she “attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.”
Kagan left the administration in August, about five months after the health care overhaul became law.
Senate Republican leader Mitch McConnell of Kentucky and three other GOP senators asked Holder last week to provide more information about Kagan’s involvement.
“When a former member of the administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined,” they said.
Liberal advocate Aron said Thomas should issue a written explanation to “reassure the public that his decision-making won’t be compromised by his past activities.”