CNN came out with an interesting poll this week concerning the Supreme Court, a favorite topic of conservatives ever since John Roberts’ horrible vote to uphold Obamacare. It turns out that trust in the Supreme Court is lacking and surprise, surprise, one of the biggest factors is the Court’s handling of… Obamacare (note that gay marriage also features prominently, but we’ll leave that to one side for now).
With major Supreme Court decisions on health care and same-sex marriage expected this month, many lack trust in the Supreme Court’s handling of those two issues, according to a new CNN/ORC poll.
Still, when Americans are asked how much they trust the court on a range of issues it will be considering this term or the next, the worst ratings come on health care and same-sex marriage. Only about half say they have at least a moderate amount of trust in the court on health care (50%) or same-sex marriage (49%).
Among the 55% of those polled by CNN who oppose Obamacare, only 45% approve of the way the Court is doing its job, and only 39% trust the Court where health care matters in general are concerned.
The numbers are bad, and most conservatives would probably say deservedly so.
But the reason the Court deserves these bad numbers for its handling of Obamacare matters is not just because conservatives think Obamacare is bad policy that should have been overturned (though it should have been), but also because the Court is essentially putting a thumbs on the scales in favor of pro-Obamacare outcomes by virtue of allowing Elena Kagan to weigh in on these cases at all. This is relevant because it’s unlikely that the current Obamacare case the Court is grappling with will be the last; in fact, Obamacare cases will probably keep cropping up for years to come.
At the time the original Obamacare case was up for consideration, [mc_name name=’Sen. Jeff Sessions (R-AL)’ chamber=’senate’ mcid=’S001141′ ] rightly called Kagan out for not committing to recusing herself when it was clear the case would be heard (note that she never did recuse herself from hearing the case). From his op-ed at NRO:
As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare. It could be no surprise to President Obama who appointed her to the Supreme Court that any former solicitor general would have many conflicts for years to come. Now, the Court will soon hear a constitutional challenge to the health-care law. Despite mounting evidence of her substantial participation in the administration’s legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.
According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” Other courts have suggested that, merely by virtue of a lawyer’s position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved.
Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagan’s direct involvement in the administration’s defense of the president’s health law from the very beginning.
Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall — the last solicitor general to become a justice, and the justice for whom Kagan clerked — recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.
I’m sure you were as shocked as I was to see Kagan vote to uphold Obamacare’s constitutionality. I’m sure you’ll be equally shocked to note that she has not recused herself from the King v Burwell case, which concerns Obamacare subsidies and could sink or save the law, a decision in which is forthcoming. This is despite the same set of facts and the same rules applying – well, theoretically, anyway.
John Roberts’ vote for Obamacare is undoubtedly responsible for a lot of the trust deficit the Court is currently facing, ironic considering the claims that his vote was in part to boost faith in the Court. But Kagan’s refusal to recuse herself, and the Court apparently not pushing her to do it despite her probable political interest in casting judgment on Obamacare matters is another good reason why the Court should be viewed very skeptically by conservatives.