“These ladies have to recuse themselves,” an indignant Bill O’Reilly proclaimed on his Fox News show Tuesday night. “I’m shocked they haven’t done it already.”
The “ladies” O’Reilly was referring to are Justices Ruth Bader Ginsburg and Elena Kagan, both of whom have officiated same-sex weddings in the past. O’Reilly wants these two justices to remove themselves from a group of pending cases challenging anti-gay marriage discrimination. In the unlikely event that Ginsburg and Kagan heed O’Reilly’s call; that would give the justices who dissented in the Court’s 2013 decision striking down such discrimination at the federal level a 4–3 majority — most likely changing the outcome of the case.
O’Reilly’s attempt to pressure justices who are likely to support equality off a major gay rights case is not a new strategy. The American Family Association (AFA), a leading anti-gay group, called for both justices to recuse the very same day that the Court announced that it was taking up marriage equality last January. “Both of these justices’ personal and private actions that actively endorse gay marriage clearly indicate how they would vote on same-sex marriage cases before the Supreme Court,” the AFA claimed in a statement. This, they claim, is sufficient reason for the justices to remove themselves from the case.
If the mere fact that a justice’s political views can be determined by their actions were a reason to remove that justice from a case, then Ginsburg and Kagan wouldn’t be the only justices who need to recuse from the marriage equality cases. Justice Antonin Scalia, with his rants about the “homosexual agenda,” hasn’t exactly been shy about his own views on gay rights. Scalia, however, like Ginsburg and Kagan, can rest assured that he is not required to recuse himself from these cases either.
The federal law governing judicial recusals, as one of O’Reilly’s guests stated repeatedly and, at times, very loudly, provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The AFA, O’Reilly, and O’Reilly’s boisterous guest all hang their argument on the word “reasonably,” claiming that Ginsburg and Kagan’s impartiality is reasonably in question because their actions indicate support for marriage equality. There are a number of reasons why it would be entirely unreasonable to expect justices to recuse under these circumstances, however. Indeed, it’s unlikely that the Supreme Court could function at all under the standard that O’Reilly and the AFA propose.
For starters, as another one of O’Reilly’s guests points out, O’Reilly and the AFA blur the line between support for a particular policy and belief that this policy is required under the Constitution. Though this distinction is frequently blurred, even by prominent Supreme Court practitioners, it is an important one. Consider the words of the conservative Justice Clarence Thomas, who dissented in the major gay rights case Lawrence v. Texas:
[T]he law before the Court today “is … uncommonly silly.” If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ “ And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions.”
Thomas’s views did not carry the day in Lawrence — the Court voted 6–3 to strike down the sex ban at issue in that case — and his views are, to say the least, controversial. But Thomas’s broader point, that a justice’s job is not to hunt through the laws of various states seeking out decisions they personally disagree with and then strike them down, is apt. Nor have Ginsburg and Kagan demonstrated that they are unable to make this distinction. Kagan, for example, sent an email prior to joining the Court which suggests that she supports the Affordable Care Act — a fact that the law’s opponents also pointed to quite vociferously in an effort to get her to recuse from the first Obamacare challenge — yet she voted to render the law’s Medicaid expansion optional in NFIB v. Sebelius.
But what of the argument that Ginsburg and Kagan have personally participated in same-sex weddings by officiating them? If mere participation in a legal institution was grounds for recusal, then it would be difficult to find judges or justices who weren’t recused from many cases. The speed limit in the state of Colorado, for example, is 75 mph, while other states have lower speed limits. Yet, if a litigant were to challenge one of these lower speed limits in court, a judge would not be required to recuse themselves simply because they once drove on Colorado’s roads and took advantage of its higher speed limits.
To use a more politically charged example, both Justice Thomas and Justice Sonia Sotomayor have, in the past, benefited from affirmative action. Sotomayor, who has argued in favor of affirmative action both in her judicial opinions and in the press, credits race conscious admissions policies with the fact that she was able to rise from Bronx housing projects to attend Ivy League universities (Sotomayor completed her undergraduate degree summa cum laude at Princeton, and then attended Yale Law School). Justice Thomas, by contrast, is a vocal opponent of affirmative action. He believes that it created a stigma that prevented him from finding jobs after his own graduation from Yale Law.
Neither Thomas nor Sotomayor are required to recuse from affirmative action cases. Indeed, they’ve sat together in two such cases in the last two years.
The litigants defending discrimination, in other words, will need to rely on their actual legal arguments in order to make their case, rather than hoping that the case can be rigged by changing the composition of the bench. If the Court’s recent actions are any indication, that’s good news for equality.