WASHINGTON — With a one-sentence statement, the Supreme Court decided today not to bypass appelate courts and expedite a Virginia case against the health reform law straight to the Supreme Court.
That wasn’t exactly an unexpected move, but there was one key bit of information omitted that provides some insight into an issue that most legal scholars believe will be settled in the nation’s highest court.
Supreme Court statements of this sort typically include the names of justices who aren’t involved in deliberations, and this one had no names attached.
That’s notable because liberals have been pressing for conservative justice Clarence Thomas to recuse himself, citing his wife Ginni’s work against the law as it was being formed, and now since it has passed. A group of 74 Democrats, including Keith Ellison, wrote a letter earlier this year asking for Thomas’ recusal, which it now seems will not come.
Supreme Court rules say justices must recuse themselves when they have a direct financial interest in a case, though legal scholars are conflicted over whether Thomas’ wife’s work counts under that clause.
Meanwhile, Republicans have demanded Elena Kagan step down, saying that when she was President Obama’s solicitor general she almost certainly would have been involved in discussions about whether the law was constitutional, thus prejudging her decision in this case.
“I personally believe she should recuse herself,” Utah Sen. Orrin Hatch told Fox News in February. “I’m sure she participated in discussions at the White House. Participated in discussions in the solicitor general’s office. These issues were brought up throughout the process.”
Why all this recusal talk ahead of time? Well, belief in the relative merits of the arguments, sure, but also because most observers expect a 5-4 decision in the eventual case. Knock off a Republican-appointed justice, and the law stands a better chance of staying. Knock off a Democrat-appointed justice, particularly one from Obama himself, and the law might fall.
In cases before lower courts so far, the health care law has been completely upheld three times, partially overturned once (the Virginia case) and completely tossed out once. About a dozen additional cases have been thrown out as being without merit.