There’s something a little weird about members of Congress accusing Supreme Court justices of being overly political. Republican lawmakers and their supporters have demanded that Justice Elena Kagan recuse herself from any case involving “Obamacare” or the “Affordable Health Care Act.” (Really, what you call it depends on whether you’re for or against it.) Similarly, Democratic members of Congress and their supporters have called for Justice Clarence Thomas to recuse himself, in light of his wife’s campaigning against the new law. As tempting as it is to try to weed out any and all possibilities of bias from a judicial panel before allowing it to hear a case, it’s a futile task and a pointless one, too. No one goes through life without forming opinions on a whole lot of subjects, whether or not they’re qualified to opine on those subjects. The combined efforts of plaintiffs’ and defendants’ trial lawyers try to choose jury panels that are roughly balanced, but it’s a given that predilections still exist. When those predilections serve our opponents’ purposes, we call them “biases.” When they serve ours, we call them “life experience.”
So it was good to see Chief Justice John Roberts stand up for the integrity of the Court in his year-end report on the Court’s activities. Roberts didn’t mention the healthcare debate—or any particular case, for that matter—but he dismissed the notion that Supreme Court justices are subject to laxer rules than other judges. “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” wrote Roberts. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise in the course of their judicial duties.”
The truth is, Roberts may be flat wrong. But it doesn’t matter. The good of our judicial system (and our governmental system, as a whole) dictates that we maintain a few fictions, and Supreme Court impartiality is one of them. The Constitutional scheme of life tenure for federal judges creates the best chance it can of an impartial judiciary. On the federal level, we’ve done our best. In Texas, where we have a long history of allegations of “justice for sale”—on both sides of the party aisle, whether the characterization is correct or not—we’re still working on it. Roberts’s report recognizes that an ethical judiciary requires appointing ethical people. All else is faith.