Editorial: Supreme Court accepts Affordable Care Act case; three should recuse themselves

Posted Wednesday, November 16, 2011 in Opinion

Editorial: Supreme Court accepts Affordable Care Act case; three should recuse themselves

On the day that the Supreme Court accepted the Affordable Care Act case, two of its justices — Antonin Scalia and Clarence Thomas — were the guests of honor at a Federalist Society dinner. The party was paid for by the same law firm that is arguing before the court against the ACA. A second law firm, also sponsoring the event, is the attorney of record for one of the trade associations that challenged the law, the National Federation of Independent Business. Another sponsor was pharmaceutical giant Pfizer Inc., which has an enormous financial stake in the outcome of the litigation.

There are no rules that Supreme Court justices must follow; they are expected to use common sense and recuse themselves if there is any breath of an ethical dilemma.

So far, neither justice has indicated that he intends to recuse himself.

Another issue is that of Justice Elena Kagan, who, as solicitor general in the Obama administration, initially defended the ACA. She, too, has not indicated that she will recuse herself.

All three justices should step aside for this landmark ruling. Although it is understandable from a human perspective to want to play a role in something this far-reaching, any ruling they make will be tainted, whether or not they feel they are able to analyze the situation without any sort of ethical breach.

The stakes are too high for this ruling, which will do nothing less than determine the course of health care in the United States for years to come, for it to be compromised by any concern over the ethics of the situation. 

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