The frisson over recusal has been generated not only because of the intense interest on the legality of the healthcare law’s individual mandate to buy health insurance, but also the expectation of a court likely to be divided along a 5-4 line. That means the exit of one justice could produce a deadlock.
The most recent row over recusal involved Scalia. He was asked in 2004 to step aside in a suit that sought the records of then Vice President Dick Cheney’s energy task force because of his long friendship with Cheney. The two recently had hunted together.
Scalia refused. "I do not believe my impartiality can reasonably be questioned," Scalia wrote in a memorandum. "If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined.”
When the decision was handed down, Scalia sided with Cheney in the dispute, writing a dissent along with Thomas saying the lawsuit against him should be dismissed.
Turley, the law professor, said both Kagan and Thomas should stand down, because any ruling involving either of them would taint the outcome.
"The appearance problems for both justices undermines the integrity of the court and the legitimacy of any final ruling in this historic case," he said. "They are responsible for those appearance problems and, in the interest of the court as an institution, should recuse themselves in my view."