Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it; (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
and it goes on for several more pages.
But these first ones are the relevant ones. These are the ones that are significant in the recusal of Justice Kagan from sitting and deciding on the case against Obamacare. When Kagan was solicitor general she assigned deputy in her office to help prepare legal defenses to any challenges to ObamaCare. When asked to meet to discuss legal defenses to Obamacare, she asked for the phone number of the inquirer rather than put those details in writing on email. As solicitor general she has clearly acted as “counselor or advisor” of the law to the White House. She is definitely not impartial.
But only a Supreme Court Justice can recuse themself and she has just as clearly chosen to not do that. So now we have a case where a Supreme Court justice acting on the Supreme Court, supposedly the arbiter of what is to be constitutional, has chosen to violate her own oath of office.
We now have a president who has violated his oath of office, at least one Supreme Court Justice who has done the same and may be affecting the application of a law, and a Congress that lets party partisanship trumph their own oath of office and refuse to weigh in to prevent either of the aforementioned activity. We are truly on a rollercoaster with no good end. That idea of a republic with people governing themselves? We don’t have it anymore.