If the Supreme Court Hears the Case Over Obamacare, Will All of the Justices Weigh In?

10/06/11

And, though the Supreme Court has not even made a decision to hear the case yet, arguments have already ensued about excluding certain justices from deliberating, namely, Justice Elena Kagan and Justice Clarence Thomas.


According to the October 2nd foxnews.com article, “Kagan, Thomas Targeted in Hopes of Swaying Supreme Court's Health Care Ruling”, per Kagan, “she was not involved in developing the legal strategy of the Affordable Care Act”; however, those opposed to the law have already “requested records of the administration's deliberation process to” review the participants. As the former solicitor general, opponents feel her role in the administration as it crafted the legal defense for the health care law makes it impossible for her to be objective.

Others feel Justice Clarence Thomas should be removed from deliberations “because his wife worked for organizations” which oppose the health care law.

There is also speculation that Justice Antonin Scalia could be pressured to sit the case out, as last year, he spoke to a Tea Party group about possible weaknesses in the law.

Twenty-six states, along with the National Federation of Independent Business —a lobbying organization that focuses on the impact of legislation on small businesses —would be opposing parties to the case.

Tom Dupree, a former Justice Department official in the George W. Bush administration, was quoted as saying in the foxnews.com article: “You have a case that presents very important constitutional questions arising from the administration's signature domestic initiative and now you have both the states that are challenging the law as well as the administration itself telling the Supreme Court you need to decide this issue now.”

There is no method in place that can force a justice to remove him or herself from deliberations, but at times, justices will recuse themselves. For example, Kagan declined to deliberate in 28 cases during her first year on the court due to her former position in the Obama administration.

Dupree was also quoted as saying: “There's a good possibility it could be decided by a one-vote margin, and in that circumstance, where you have folks lining up on both sides of the political aisle trying to get whatever advantage they can, it doesn’t surprise me that there are calls for recusal. But I think at the end of the day, Kagan and Thomas are both deciding this case.”

The Patient Protection and Affordable Care Act (PPACA) “was signed into law by President Barack Obama on March 23, 2010” and has been the subject of heated debates and much criticism before, and since its passage. Although there are many criticisms of the law, the requirement that essentially all Americans must carry health insurance or face penalties has incited the most contention. The law institutes a variety of reforms in both “the private health insurance industry and public health insurance programs.” These include “increasing insurance coverage of pre-existing conditions, expanding access to insurance to” 30 million plus Americans, “and mandating an increase in total national medical expenditure,” according to information at Wikipedia.com.