Both sides push to get justices off ObamaCare

The pending U.S. Supreme Court case on ObamaCare is likely to be the most closely watched hearing of the decade. And the pre-hearing scrimmage is already under way.

Fearing a close vote, partisans from both sides are trying to impact the outcome by pressuring one of a pair of justices to recuse themselves.

Those who hope to see the law thrown out focus on junior justice Elena Kagan, who was the Obama administration's solicitor general when the law passed. Justice Kagan has said she played no role in defending the statute before being appointed to the court, and thus sees no need to absent herself from deliberations. Federal law requires Supreme Court justices to recuse themselves from a case if they earlier "participated as counsel" in that case.

"Justice Kagan did just that when she was Obama's solicitor general," argues Carrie Severino, chief counsel of the Judicial Crisis Network. "One simply can't be the coach and referee in the same game," Ms. Severino wrote in The Washington Examiner on Sunday. "At best, knowing the playbook will color your judgment, and at worst, you'll be on the lookout for chances to give your former team an advantage."

Attempting to change the subject, supporters of the law have responded that conservative Justice Clarence Thomas should also step aside in this case, based on the somewhat more tortuous argument that his wife, Virginia Lamp Thomas, has been active in conservative causes since before they were married. Virginia Thomas has worked for the conservative Heritage Foundation. And -- though she has since left the organization -- in 2009 she created a group called Liberty Central to advance some of the same political causes as the tea party, The Washington Post reports, including the belief that Congress and the federal government have strayed beyond the limits of the Constitution.

Next she'll be accused of reading the Declaration of Independence aloud on the Fourth of July.

Among the high-profile authorities holding this creates not a glimmer of conflict for Justice Thomas are liberal former Justice John Paul Stevens, who said in response to a question at Princeton University that, "I wouldn't think there's any possibility that any of the activities of Mrs. Thomas have had any impact on the analysis of Judge Thomas" -- and Justice Stephen Breyer, who has called this a "false issue."

In the end, there is no higher authority to instruct the justices when they must recuse themselves. And while it's obvious some justices are more predisposed to approve of extraconstitutional government expansion than others, mere "predisposition" is not a disqualifier.

Almost certainly, all nine justices will hear the case. All bring their core principles and prejudices with them. All that can be hoped is that they let their deliberations be guided by the document to which they have sworn their allegiance, a 225-year-old Constitution intended to give Americans a central government of limited powers.