Live Q&As

We do have to trust them to some degree -- even though we know that they have political and jurisprudential commitments.

I suppose that citizens can demand whatever suits them, but in the long run we're better served by a principled approach. I have been disappointed in some legal ehics profs for letting their politics get in the way of their analysis. I do expect more from them, but, technically, they haven't breached the ethics rules even if they offer over-reaching arguments.

At the very same dinner were lawyers and law firms that represent parties SUPPORTING the health care statute. Besdies, those Federalist Society dinners are perfectly appropriate.

I'm not an expert on the constitutional question, just on the ethics issue. (I do predict the statute will be upheld.)

Great question. Polls show that after Bush v. Gore the SCOTUS did regain its public support, which is important. Although I don't think Justices Scalia and Thomas should recuse, I think that they should be more sensitive to the appearance of the conferences they attend. They should attend some liberal-sponsored conferences too.

It's quite unusual for a Justice to have to "recuse," or disqualify himself or herself, except where, for example, the Justice had been Solicitor General.

We have to be careful when using a spouse's political activities or views to DQ a judge. Spouses are permitted to ahve political lives, too. Judge Reinhardt, in the 9th Circuit, is married to an ACLU lawyer who had been involved in the same sex marriage case, which was then assigned to Judge Reinhardt. He didn't recuse himself and I think he was correct not to do so.

On the other hand, if the spouse is a party or represents a party, DQ is appropriate.

[edit]  So was it "lobbying" pre se, or just public advocacy?

I believe that when the issue arose, she stepped out of that position, to avoid any issues of DQ. If she were a party in the case or a lawyer for a party in the case, it would be pretty clear that DQ would be the right answer.

Here's the key language from the statute 28 USC 455:

He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding

I'm in favor of judges doing the right thing, but remember that if we draft lots more rules on DQ events, we'll get lots more partisan motions to DQ and we can erode confidence in the system.

[edit] Also, Congress's power to dictate to the SCOTUS might not be a good thing!

Please be specific. She was associated with a political group that supported conservative causes, but she stepped down from that group before the court took the case and even if the "conservative side" prevailed she wouldn't win damages or attorneys fees for herself personally or for that group.

He had been in the Exec Branch, altho i don't recall the recusal specifics. Moving from the Solicitor General to the SCOTUS can lead to some early recusals. That's been true for Justice Kagan, but she tried to carve out the healthcare case and not participate while SG.

I understand that she doesn't like the law, but that's not a recusal event for Justice Thomas -- and it shouldn't be, in my view. Unless the spouse is directly financially benefitted or a party or party's lawyer, we should let spouses have their own political lives. That was true with Judge Reinhardt in the same sex marraige case.

I understand your views. But adding lots of DQ events won't necessarily help that.

Those are very good questions. I, too, found the votes amazing. If she had been more vocal and specific, she might have had the problem Scalia did in the Pledge of Allegiance case and needed to step down. As for her being cc'd on emails, it takes more than that to "participate as adviser or counsel."

My problem would be with letting partisan zeal infect the recusal issue --  because almost half of everything seems to have an appearance of impropriety to a partisan!  That is, everything "they" do seems improper and what "we" do isn't. We can't let that infect judicial recusal.

Great, tough question. But the problem is that if we take the deicsion away from the SCOTUS justice, we necessarily hand it to someone else who suffers from all the same issues of potential bias. Who will judge the judge who judges the DQ? So we have to trust the justices or we simply restart another round of fighiting over bias.

I'm worried about taht, and I wonder if the problem isn't the hyper-partisan mood. For that very reason, I'd prefer that Justices Scalia and Thomas go out of their way to speak at conferences by center-left or even lefty organizations. Alternatively, they can clam up, but I don't think that's required.

IIRC, the votes on the closest issue were split right along party lines. That happens and my assumption is that no justice wanted the SCOTUS to take on that role.

I'm not a consitutional scholar, but here's my two cents. Under Rehnquist we briefly had a series of cases limiting the power of the federal government. There seemed to me to be no deep wellspring of political support for those and the doctrine largely got whittled away or ignored. In my view, Justice Roberts is a pro-government and pro-establishment type. Alito may or may not be. Kennedy will be looking at his long term reputation and doesn't see any viable point of striking down Congress on commerce grounds. So I see it 6-3 or better in support of the statute. Kennedy will write the majority opinion.