U. S. Supreme Court and ethics of recusal

There are very practical consequences to whether Clarence Thomas and Elena Kagan recuse themselves from the Court's decision about the constitutionality of the health care reform bill.

To me, it seems pretty clear cut that Thomas should recuse himself, because his wife has not only been a leading spokesperson in opposition to the whole concept, but she headed a non-profit group formed to oppose it -- and she drew a six-figure salary until the ethical questions for her husband were aired in the media. Thomas has not yet said whether he would step aside.

The Republicans' objection to Kagan is that she was Obama's Solicitor General and may have worked on the case. I don't know how much she had to do with it and whether it should be grounds for recusal.

Justice Stephen Breyer -- one of the liberal group -- made a cogent point that I had not considered before. While there are pretty strict guidelines for other federal judge to decide when to recuse, there are none for SCOTUS. Each Justice is left to decide for him/herself.

Well, of course, I've been thinking, the rules should be at least as strict for SCOTUS. But Breyer's point is that on the lower courts, if one judge recuses -- there are other judges to take his place. That is not true of the Supreme Court. If one recuses, then the decision is made by the other eight. And so the outcome is foremost in everyone's mind when the question is considered.

Breyer was not saying never recuse, then. He was saying that it's a much more significant decision and the justification has to be that much more carefully thought through.

If both Thomas and Kagan recuse, it probably won't change the outcome. In fact, that is probably why Republicans are insisting that Kagan do so -- to counter the greater probability that Thomas either will, or should.

Ralph