Supreme Court Recusals

http://www.nytimes.com/2016/10/17/opinion/supreme-court-recusals.html

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To the Editor:

In “The Supreme Court Is Being Hypocritical” (Op-Ed, Oct. 11), Gabe Roth criticizes the justices for playing by their own rules instead of heeding their decisions in suits before them “that have parallels with how they act as stewards of their institution.”

He writes that “surely Justice Kagan’s experience in the Obama administration constituted ‘significant involvement’ in the Affordable Care Act cases” and that the justice should have recused herself.

Justice Elena Kagan’s “significant involvement” was as solicitor general, a position that is primarily concerned with managing the administration’s appellate litigation. The act was signed into law on March 23, 2010; a challenge was filed the same day, in Florida. The first action requiring the solicitor general’s approval, a notice of appeal, was filed on March 8, 2011. But Solicitor General Kagan had resigned the previous May.

Doubtless, numerous officials in the Justice Department played some role in drafting the act; however, there is no reason to assume that the solicitor general had any involvement in those discussions. When I served in that post, from 1985 to 1989, as usual my office had nothing to do with most pieces of legislation until the time came to appeal from an adverse ruling.

Mr. Roth also cites the failure of Chief Justice John G. Roberts Jr. to recuse himself in a case against Walmart though he owned a significant amount of stock in companies that signed amicus briefs supporting Walmart, in which he held no stock. If the filing of such amicus briefs were sufficient to trigger a recusal, it would be all too easy to shape the court’s bench by strategic amicus filings.

CHARLES FRIED

Cambridge, Mass.

The writer is a professor at Harvard Law School.