Later this month, all nine justices will be hearing oral argument on the constitutionality of the Patient Protection and Affordable Care Act and deciding the outcome of the case. But should they? In Caperton v. A.T. Massey Coal Co., the Supreme Court held that a judge of the West Virginia Supreme Court violated the Due Process Clause of the Constitution when the judge failed to recuse himself from a case involving a major campaign contributor. Many cheered the case’s outcome, but Professor Ifill believes Caperton is an “ominous sign” that a majority of the Court fails to understand how dangerous the appearance of impropriety is in the American judicial system. Professor Segall agrees that the judicial recusal system needs reform, but he disagrees with Professor Ifill over what amounts to an appearance of impropriety. As the need for reform becomes more apparent in light of the constitutional challenges to the Affordable Care Act, Professor Ifill and Professor Segall disagree over whether Justice Thomas or Justice Kagan ought to recuse themselves from the Court’s upcoming hearings. Their various perspectives highlight the confusion of contemporary recusal doctrine for America’s highest Court and make a strong case that the Court must do a better job of clarifying when a Justice should recuse him- or herself.
Volume 160 Issue 1 2012 Debate