Bench Memos

Recusal Red Herrings


CNN’s Bill Mears published a piece on Tuesday asking, “Should three key Supreme Court justices bow out of health care ruling?” Bench Memos readers are familiar with calls for recusal involving two of the justices, Thomas and Kagan, a topic that has been covered in considerable detail on this blog. But what drew me to Mears’s piece was how casually he threw a third justice into the mix: Justice Scalia. Like Justice Thomas, Justice Scalia was recently honored at the Federalist Society’s annual dinner. 

Mears finds that fact “buzzworthy,” and dedicates the first four paragraphs of his piece to “outraged” liberals who have called on those justices to recuse themselves since their appearance at the dinner came “just hours after the court privately agreed to accept the health-care cases for review.” Understandably, Mears does not explain what the basis for recusal would be, since it is presumably the same baseless claim made by some liberals that it was improper for the justices to attend the dinner because it was also attended by prominent lawyers who have challenged Obamacare in the Court. Mears wisely chose to not explain the basis — probably due to the fact that he could find no legal ethicist who takes the claim seriously.

As Jonathan Adler has already noted in his analysis of an L.A. Times piece on the same issue, the Federalist Society dinner was also attended by lawyers and law firms defending Obamacare, so “the headline could just as easily have read ‘Scalia and Thomas dine with health-care-law supporters.’” I’ll take it a step further: By Mears’s own standards, I think he could have gotten away with a headline that read “Should all nine Supreme Court justices bow out of health care ruling?” 

Being an informed journalist, Mears must be aware that justices regularly appear and speak about the law at events hosted and organized by (spoiler alert) lawyers. When those events are hosted in places like Washington, D.C., or when they are organized by large and prominent organizations like the American Bar Association, it is a virtual certainty that someone in the crowd will have a stake in a case before the Supreme Court. And similar social events take place all across the country on a very regular basis, featuring the federal and state judges of those jurisdictions. If that is enough for Mears to imply a possible need for recusal, then I have some ideas for his follow-up piece. 

Let’s start with Justice Ginsburg, who spoke to the National Women’s Law Center (as well as the Women’s Bar Association of D.C.) several days after the Supreme Court announced it would consider the constitutionality of Obamacare. The NWLC filed amicus briefs in three of the Obamacare cases, including the Florida case the Court had just agreed to hear. According to the organization, “Like the civil rights laws of the past 50 years, the ACA aims at ‘a moral and social wrong’ that itself has profound economic consequences.” Incidentally, gender equality was also the topic of Justice Ginsburg’s speech. If that doesn’t meet Mears’s threshold, what about Justice Ginsburg’s attendance at President Obama’s recent state dinner for South Korean president Lee Myung-bak? Aside from being hosted by the president, who signed Obamacare into law and directs the lawyers who are defending it in the Court, I suspect the dinner was also attended by several lawmakers and opinion leaders who support the law.

Justice Breyer might also be engaged in some “buzzworthy” activities. On December 11, he will speak at an event sponsored by Marc and Lori Kasowitz and the law firm Kasowitz, Benson, Torres, & Friedman LLP. According to, Marc and Lori Kasowitz have donated hundreds of thousands of dollars to public officials (including Harry Reid and Barack Obama) and PACs. Meanwhile, the law firm represents Consumer Watchdog, a group that lists “Implementing Federal Health Reform” at the top of its issues page. Perhaps Mears should warn his readers that Justice Breyer might rub shoulders with his hosts or someone in the audience who has an interest in the Obamacare litigation.

Or maybe Mears wants to tackle a speech that Justice Sotomayor delivered this summer before the Juvenile Diabetes Research Foundation, in which she discussed health issues with 150 children and teens. JDRF bills itself as a nationwide network of advocates that “supports efforts to reform the healthcare system and applauds Congress and the Administration for prioritizing such efforts.” Who knows, maybe Mears’s readers would like to know that an outraged liberal might characterize the organization and those 150 children and teens as parties with an interest in the outcome of the Obamacare litigation.

The list could go on and on, because the justices regularly engage in social, civic, and educational activities. The vast majority of those activities are healthy and perfectly consistent with their official role. I don’t intend to dismiss the possibility that some of those activities could raise serious ethical questions, or give rise to legitimate recusal issues. In fact, Justice O’Connor’s recent political activism ought to be the subject of even more public discussion. (It is often forgotten that she is still an active judge hearing appellate cases.) 

Mears and other journalists who cover legal affairs perform a vital service in informing the public’s perception of our courts. Uncritically repeating frivolous calls for recusal every time a justice gives a speech or attends a social event where thousands of lawyers will be gathered is a disservice. 


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