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Recusals May Impact Health Case

Publication Date: 
November 30, 2011
Joanne Kenen

Associate Professor Jeffrey Fisher spoke with Joanne Kenen from about the partisan views some people may have of the Supreme Court's membership and how that "concerns him" when it comes to the upcoming health care ruling.

From the right and left, Washington is awash in demands that two Supreme Court justices recuse themselves from this spring’s review of the health law.

The requests, from politicians and advocates but not from the parties to the lawsuit itself, aren’t likely to have any effect on the justices, Elena Kagan and Clarence Thomas. But by injecting questions about fairness and propriety, the recusal fight could shape how the public views the ruling — expected in June, right in the midst of the presidential campaign.


For instance, the court usually sets aside an hour for oral arguments. For the health law, it will be 5½ hours over two days, probably in March. Instead of "picking up a scalpel" and choosing "one serious legal issue," as Stanford Law School's Jeffrey Fisher put it, the court in the health case agreed to examine a host of issues about the individual mandate, tax law and Medicaid expansion. They get at fundamental questions about the government's role in the economy.


"That concerns me as someone who cares about the court as an institution," Fisher said — because it means a health ruling could be seen as an extension of politics, not as something that’s above politics.


"We’ll only know that if some justice writes and tells us," Fisher said. "Or until whatever memoir comes out."