The SCOTUS Year End Report and the Independence of the Judiciary

The Supreme Court often comes under fire due to the partisan influences many note in its members' voting records. Indeed, it often seems that more time is spent in the media discussing the political affiliations of Justices than actual decisions, a phenomenon that is doubly true during any potential Justice's confirmation process. However, it is not clear that the Justices themselves spend much time worrying about political considerations, and they actually tend to come out 9-0 or 8-1 far more often than they split 5-4. Indeed, if Justice Roberts' year-end address is any indication, the Nine are currently far more concerned with old Marbury v. Madison-esque independence issues than political considerations.

It is no secret that the 2010 healthcare reform legislation is heading to the Supreme Court. What was assumed by many as a number of cases related to Obamacare led to massive circuit splits became a surety as the Court set dates to hear arguments related to the bill for late March.

Many on the right have called for Elena Kagan to recuse herself from the consolidated appeals due to her unclear involvement in the legislation in her role as solicitor general. However, using the Black Sox scandal as a backdrop, Roberts takes advantage of the opportunity afforded him in the Chief Justice's annual address to address recusals (and indirectly defend his benchmate) as part of a broader discussion on judicial ethics. Though he states that he cannot discuss specific cases or circumstances, it is clear what he had in mind with the following statement:

I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties. We are all deeply committed to the common interest in preserving the Court’s vital role as an impartial tribunal governed by the rule of law.

Of course many other issues of a pragmatic nature may be at play. Many believe that Clarence Thomas has grounds for recusal as well with his wife's involvement in the healthcare industry. Recusal by both Thomas and Kagan would, most likely, lead to one vote being taken from each side in a wash. Or, there may already be a sense among the justices that, particularly in an election year, it would be easier to decide the case on slightly less charged grounds than the ability of the government to mandate coverage. Similarly, or maybe as a corollary, they could duck the issue by declaring that the political process is better able to solve any problems pertaining to reform than the judiciary. Or, perhaps believing he already has a majority with him on this particular issue, maybe Roberts is simply taking the opportunity to reaffirm the independence of the judiciary in a situation where it doesn't lose him any points for his side.

However, while it may be a bit naive, it is nice to think that these types of factors weren't the sole driving force behind Roberts' statement; that he was actually affirming the integrity and independence of his judicial brothers and sisters. If so, this would be a strong signal of intent and should provide a measure of comfort to those who have perhaps become overwhelmed by political sniping and alarmist reporting with regards to The Supreme Court. This is particularly true as the nation embarks upon an election year which is certain to be among the most divisive to date.

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