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Despite the efforts of partisans on both sides of health care reform, it appears that all nine members of the Supreme Court will rule on the cases testing the constitutionality of the Affordable Care Act. Dueling campaigns have been underway for months for justices Elena Kagan and Clarence Thomas to recuse because of perceived conflicts of interest: Kagan because of her role as solicitor general during and after passage of the law in 2010, and Thomas because of his wife Virginia’s involvement with conservative groups opposing the law. Monday’s orders granting review in the health care cases would have been the customary occasion for justices to signal their intentions to step aside by stating that they “took no part” in the decision. But there was no such indication from any of the nine. It is conceivable but unlikely that either Kagan or Thomas could still bow out at some later point, however, and activists Monday said they would continue to exert pressure on the justices, possibly including formal requests to recuse. Members of Congress who have urged Thomas and Kagan to step aside may also join the fray. “I don’t think it’s over yet,” said Carrie Severino of the conservative Judicial Confirmation Network, which has been critical of Kagan’s participation in the case. “Today was Justice Thomas’s first opportunity to recuse, but it’s not his last,” said Ethan Rome, executive director of Health Care for America Now. “We are hoping he will take a look at the facts and do what is best for the Court and for the legitimacy of whatever the Court decides.” Severino said a request to Kagan to recuse is “definitely a possibility,” though she doubted any of the direct parties in the cases would take that step, for fear of alienating Kagan or her colleagues. “If you shoot at the king, you better not miss,” she said. If pressure continues, Severino said Kagan’s colleagues might suggest she recuse for the sake of the Court’s reputation. “Chief Justice Roberts is very jealous of the good name of the Court,” she said. Her group, along with Judicial Watch and the Media Research Center, has been seeking documents through the Freedom of Information Act to determine Kagan’s role in the health care issue. Just last week, the Justice Department released an exchange of emails from March 2010 between Kagan, then solicitor general, and Harvard Law School professor Laurence Tribe, then counselor to the attorney general. “I hear they have the votes Larry!! Simply amazing…” Kagan wrote in one of the emails. That comment, Severino said, shows that “this was someone who, policy-wise, was in favor of the law,” but she said it does not in itself mean Kagan should recuse now that she is on the high court. Severino, a former law clerk to Justice Thomas, still thinks that Kagan should step aside because of what she says is other evidence that she was part of the early strategizing about defense of the law. “To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?” she wrote in a memorandum last week. Likewise, it appears that pressure on Justice Thomas to step aside will continue. Soon after the Court acted on Monday, the liberal Alliance for Justice issued a statement from alliance president Nan Aron: “With the Supreme Court agreeing to hear cases challenging the constitutionality of the Affordable Care Act, voices will be heard calling for Justice Clarence Thomas to recuse himself from the case.” Aron said Virginia Thomas, who for a period operated the “Liberty Central” blog with ties to the Tea Party movement, had received donations from conservative businessman Harlan Crow, a longtime friend of the justice. Mrs. Thomas has since stepped back from that role and is a columnist for The Daily Caller, the online news outlet run by conservative commentator Tucker Carlson. In addition, Aron cited Justice Thomas’s omission from his financial disclosure forms the fact that his wife was paid a salary in previous years by the Heritage Foundation, which Aron describes as “an active foe of the health-care law.” The alliance is calling for broader reforms to make justices more accountable in the area of financial disclosure and recusal decisions. Ethan Rome of the pro-health reform network said Thomas has a “direct financial interest and personal connection” to opponents of the health care law through his wife. Rome said his group has not yet decided whether to file a recusal request with Thomas. But a leading expert on judicial ethics said neither Kagan nor Thomas is really required to recuse under the federal law governing judicial conflicts of interest. Jeffrey Shaman of DePaul University College of Law said that in Kagan’s case, it is not uncommon for judges to begin their jobs with a history of some connection as legislators or member of the executive branch to issues that may come before them. “Before they join the bench they make all kinds of comments about things, they work on legislation, make speeches and comments,” Shaman said, but that does not disqualify them from serving. In the case of Thomas, Shaman said recusal could be a bigger issue if he benefited financially from, say, someone who lobbied against the health care law. But his wife’s outspokenness about the issue is not a problem, in Shaman’s view. “Twenty-five years ago, they might have said judges should control their wives. But she has a right to her own life.” Tony Mauro can be contacted at [email protected].

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