U.S. Supreme Court Justices Clarence Thomas and Elena Kagan are at the center of a debate over whether they should be involved in deciding the fate of health-care reform that would greatly benefit African Americans, because of possible conflicts of interest.

“We’re struggling in a fractured health-care system,” said Dr. Oscar E. Streeter Jr., professor and chairman of radiation oncology at Howard University.

More than half of the 50 million uninsured people in the United States are people of color; 19 percent of those without health coverage are African Americans, according to census figures.

That is already changing under the Patient Protection and Affordable Care Act of 2010, pushed through by President Obama, Dr. Streeter notes. In just a year, he said, health-care reform has made a significant difference in providing coverage for people with pre-existing conditions and in allowing young adults to remain on their parents’ insurance policies until age 26.

However, some charge that Thomas has an ideological bent and potential conflicts that could further influence him to kill hopes of improved health care for all.

The Rev. Al Sharpton, lawmakers and others have questioned the justice’s attendance at events sponsored by conservative groups that oppose health-care reform; the outspokenness of his wife, Virginia; her ties to conservative groups, such as the Heritage Foundation; and her incomplete employment information on his financial disclosure forms.

“His attendance at an event by itself is not considered grounds for recusal,” said Kurt L. Schmoke, dean of the Howard University School of Law, alma mater of the late Supreme Court Justice Thurgood Marshall. In terms of his wife’s role, “even that is an arguable case,” Schmoke said.

“You usually have to show a high degree of bias,” he added. This could include previous comments and written materials that indicate a justice had already reached a conclusion on an issue.

“The code of judicial conduct requires a recusal if there’s a perceived conflict of interest,” Schmoke explained. “The person most likely to have a bias is Justice Kagan, because she was an attorney in the Obama administration at the time the health-care law was being pushed through.”

While many people may call for recusal, they can’t necessarily make it happen, said Schmoke, the former mayor of Baltimore. “It has to be from a person of interest in the case,” such as an individual or organization filing a friend of the court brief in a lower court.

“It’s not an easy hurdle to overcome.”


Yanick Rice Lamb

Special to the AFRO