Tuesday, October 11, 2016

Hypocritical Court?

Marty Lederman

In a New York Times Op-Ed today, Gabe Roth of a group called "Fix the Court" argues that the Justices' personal conduct often contradicts their rulings.  I don't find many (if any) of his examples very compelling.  Here, however, I merely want to address his lead case, at the top of the editorial, because it depends upon a simple, and well-known, mistake of fact.  Roth writes: 
The Supreme Court’s motto may be “equal justice under law.”  But sometimes it seems more like “do as we say, not as we do.”
Consider Williams v. Pennsylvania, a case the court heard in February concerning whether a state judge should have recused himself from a capital case in which he had an earlier involvement.  At one point during the hearing, Justice Elena Kagan, who participated in both Supreme Court lawsuits concerning the Affordable Care Act despite having served as solicitor general in the Obama administration, asked what would constitute “significant involvement” in a case — i.e., enough to require a recusal.
The answer to that question may not be obvious.  But surely Justice Kagan’s experience in the Obama administration constituted “significant involvement” in the Affordable Care Act cases.  In the end, a majority of justices, including Justice Kagan, ruled in Williams v. Pennsylvania that the judge who refused to recuse himself should have stepped aside.
"Surely"?  Wrong.  To this very day (see her recusal this morning from the Court's consideration of No. 16-5794, Kirtman v. United States), six years into her tenure, Justice Kagan been very careful to recuse herself from any cases in which she was involved as Solicitor General--from all cases on which she worked or was the supervising attorney.  These have included some very important, high-profile cases, such as the Fisher affirmative action case.  As SG, however, she decided not to work on any cases involving the ACA; instead, she delegated her deputy, Neal Katyal, to supervise that litigation.

Thus, not only didn't she have any "significant" involvement in the cases--she didn't have any involvement at all.  And therefore it was perfectly appropriate, and not the least bit hypocritical, for Justice Kagan to participate in ACA-related cases when they reached the Supreme Court.

Older Posts
Newer Posts