The Supreme Court's chief justice yesterday defended the right of his fellow justices to rule on Obamacare, the New York Times reports. John G. Roberts didn't mention justices Clarence Thomas and Elena Kagan by name, but both are facing calls to withdraw from the ruling because of their past interest in the health care program. The issue, as Roberts sees it, is that Supreme Court justices are too far up the legal totem pole to be judged or replaced.
"There is no higher court to review a justice’s decision not to recuse in a particular case,” Roberts wrote in his annual report. When a lower court judge steps aside, "there is another federal judge who can serve in that recused judge’s place,” but not so in the Supreme Court—which would be left "without its full membership.” In sum, a justice can't pull out "simply to avoid controversy." The Supreme Court is scheduled to rule on the constitutionality of Obamacare by the end of June. (See why Democrats are seeking a probe of Clarence Thomas.)