In his annual report on the state of the judiciary, Chief Justice John Roberts recently struck a blow for our centuries old Anglo-American tradition of an independent judiciary:
“The Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case…Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate.”
In the midst of some very legitimate complaints that more than half a century of judicial activism has transformed the world of American jurisprudence from an original Constitutionalist view of “a few islands of federal government power in a sea of individual liberty” into, as Professor Randy Barnett describes it now as “a few islands of individual liberty in a sea of federal government power,” it is refreshing to see Chief Justice Roberts affirm the importance of judicial independence.
Calls from the left have come for Justice Thomas to recuse himself from the ObamaCare decision on the flimsy grounds that his wife, for a while, received income from the conservative Heritage Foundation. Calls from the right have come for Justice Kagan to recuse herself from the ObamaCare decision on the more substantive charge that, as the Solicitor General who helped prepare the legal case for ObamaCare on the federal government’s behalf, she has a conflict of interest.
Chief Justice Roberts is right to tell both the right and left to back off from these recusal calls.
We can only have an independent judiciary in this country, if it IS in fact, independent. The time to raise concerns about the ideology and character of Supreme Court justices is at Senate hearings prior to their confirmation.
Political leaders have an obligation to vigorously voice their opposition to nominees during that process. Once a Supreme Court justice is confirmed, the only recourse for removal, as the Constitution provides, is through impeachment. And the standard for impeachment can only be actual criminal activity while on the bench.
Michael Patrick Leahy is the editor of the Voices of the Tea Party e-book series and co-founder of Top Conservatives on Twitter and the Nationwide Tea Party Coalition. His new book, Covenant of Liberty: The Ideological Origins of the Tea Party Movement, will be published by Broadside Books in spring, 2012. He can be reached on Twitter at @michaelpleahy .