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Amid calls for the recusal of Supreme Court justices Elena Kagan and Clarence Thomas in the upcoming health care cases, an influential organization is making an alternate suggestion: the justices should explain their decisions not to recuse. Justice at Stake, a nonpartisan group that advocates for fair and independent courts, made the recommendation in a statement released Monday. “Given the importance of the health care case to the lives of many Americans, and the rare public education opportunities that such high-profile cases offer, we believe written explanations by justices Kagan and Thomas offer the best available avenue for assuring the public that the Supreme Court will be fair and impartial — adhering to the law, the Constitution and relevant Supreme Court precedent,” the statement said. Since the high court granted review Nov. 14 in a series of cases testing the constitutionality of the Patient Protection and Affordable Care Act, calls have increased for the recusal of Kagan, because of her prior role as solicitor general, and Thomas, because of his and his wife’s alleged involvement with opponents of the law. The Court’s order granting review would ordinarily have been the occasion for justices to signal their recusal, but neither Thomas nor Kagan did so. They could still decide not to participate, but that is unlikely – especially since judicial ethics experts have generally agreed that neither justice is obliged to bow out. A written explanation for their decisions not to recuse would “increase understanding of the Court and promote public trust and confidence,” Justice at Stake asserted. Justices almost never explain their recusal decisions, which are not reviewed by their colleagues or any other body. Some justices have indicated they are reluctant to explain their actions out of fear that they might embarrass other justices into recusing in similar circumstances. But public explanations of non-recusals are not without precedent. Justice Antonin Scalia issued a 21-page memorandum in 2004 stating his reasons for not stepping aside in Cheney v. United States District Court. A party in the case formally asked him to recuse because of his personal relationship to Vice President Dick Cheney, the named appellant. In 2000, Chief Justice William Rehnquist offered an explanation for not recusing in the decision to deny review in a case involving Microsoft Corp., even though Microsoft was a client of his son James Rehnquist in other matters. More controversially, Rehnquist in 1972 also explained his non-recusal in the case of Laird v. Tatum, involving military surveillance of domestic protestors. In his prior job at the Justice Department, Rehnquist had testified before Congress on the practice. Rehnquist’s handling of the recusal question became an issue during his 1986 confirmation hearings for the position of chief justice. In addition to advocating for the independence of federal courts from political influence, Justice at Stake has urged merit-based selection of state judges. The Washington-based organization has spotlighted the influence of special interest money in judicial campaigns, emphasizing the need for recusal rules that will disclose and discourage conflicts of interest. The Supreme Court has cited its studies on judicial elections. Tony Mauro can be contacted at [email protected].

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