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In the Supreme Court of the United States ______ Nos. 11-393, 11-398, & 11-400 In the Supreme Court of the United States ________________ NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., PETITIONERS v. KATHLEEN SEBELIUS, ET AL., RESPONDENTS _______________ UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS v. STATE OF FLORIDA, ET AL., RESPONDENTS _______________ STATE OF FLORIDA, ET AL., PETITIONERS v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, ET AL., RESPONDENTS _______________ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________ MOTION OF DAVID BOYLE FOR RECUSAL OF JUSTICE KAGAN AND JUSTICE THOMAS AND MEMORANDA THERETO _________________ David Boyle Counsel of Record and pro se Movant P.O. Box 15143 Long Beach, CA 90815 Electronic mail address [email protected] Telephone number (734) 904-6132 i TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………..…..iii CAPTION, SALUTATION, AND INTRODUCTORY PARAGRAPH…………………..1 SUMMARY OF ARGUMENT…………………………………………..……………………1 ARGUMENT……………………………………………………………………………………2 I. SOME BACKGROUND ON JUDICIAL CORRUPTION AND RECUSAL......2 II. A RECENT REPORT ON RECUSAL-RELATED MATTERS; AND, THE SUPREME COURT AS FRATERNITY………………...…………………………..3 III. SOME PREVIOUS ATTEMPTS AT RECUSAL IN THE HEALTHCARE CASES, AND SOME NOTIONS ADVANCED BY THOSE ATTEMPTS…..…5 IV. GROUNDS FOR RECUSAL OF JUSTICE KAGAN.............................……...11 V. THE COURT IS NOT FOR UNACCOUNTABLE PHILOSOPHER-KINGS………………………………………………………..….22 VI. GROUNDS FOR RECUSAL OF JUSTICE THOMAS……………..……….....23 VII. SUPREME COURT AS “MONASTERY”, OR, THE NEED FOR HIGH MORAL STANDARDS AND APPEARANCES ON THE COURT, AS DESIRED BY THE PEOPLE AND SHOWN IN POPULAR CULTURE......30 VIII. MEMORANDUM OF JUSTICE SCALIA: ONE USEFUL ROLE MODEL............................................................................................................33 IX. IMPARTIALITY FROM JUSTICES, MOVANTS, AND PARTIES.....….….35 X. HOW LACK OF DISCLOSURE AND “PROPRIETY” FROM JUSTICES MAY HAMPER THE INDEPENDENCE, POWER, AND DIGNITY OF THE ii COURT..………………………...……………………………………………………36 XI. MOVANT MAY BE PERSUADED NOT TO SUPPORT RECUSAL………..39 CONCLUSION……………………………….……………………………………………..39 iii TABLE OF AUTHORITIES CASES Boyle v. Sebelius (CV-11-07868-GW(AJWx)) (C.D. Cal. Feb. 3, 2012), dismissed for lack of jurisdiction without ruling on the merits.…………………..……...36 & n.29 Caperton v. A. T. Massey Coal Co., 556 U. S. ____, 129 S. Ct. 2252 (2009)………….40 Cheney v. United States Dist. Court, 541 U.S. 913 (non-recusal memorandum of Justice Antonin Scalia) (2004) (available at, e.g., http://fl1.findlaw.com/news. findlaw.com/hdocs/docs/scotus/chny31804jsmem.pdf (courtesy of Findlaw), albeit sans starting-page cite of “913”).……………………………...…………………33 & n.25 Citizens United v. Fed. Election Comm’n, 558 U.S. ____ (2010)…………………........40 Florida v. U.S. Dep’t of Health & Human Servs., 648 F. 3d 1235 (11th Cir. 2011) (cert. granted, 80 U.S.L.W. 3297) (U.S. Nov. 14, 2011) (11-400)………….........1, 7 Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161 (1945), 325 U.S. 897 (1945)……………………………………3 & n.4, 5, 29 n.19 Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988)………………..25, 27 Liteky v. United States, 510 U.S. at 540 (1994)………..…………………………………30 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)……….……………………………...2 Purpura v. Sebelius, No. 11-2303 (3d Cir. Sept. 29, 2011), pet. for cert. denied (U.S. Jan. 9, 2012), reh’g denied Feb. 21, 2012 (11-7275)………………………….5 & n.5 Nat’l Fed’n of Indep. Bus. v. Sebelius, 648 F. 3d 1235 (11th Cir. 2011) (cert. granted, 80 U.S.L.W. 3297) (U.S. Nov. 14, 2011) (No. 11-393)……………...……………..1, 7 U.S. Dep’t of Health & Human Servs. v. Florida, 648 F. 3d 1235 (11th Cir. 2011) iv (cert. granted, 80 U.S.L.W. 3297) (U.S. Nov. 14, 2011) (11-398)…1, 7, 35 n.28, 36 Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. ____, 131 S. Ct. 1632 (2011)….4-5, 29 CONSTITUTION U.S. Const. art. I, § 6, cl. 2 (“Ineligibility Clause”)………………………………………29 STATUTES Patient Protection and Affordable Care Act (“the Act”), Pub. L. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. 111-152, 124 Stat. 1029 (2010); all of which to be codified in various parts of the United States Code including 26 and 42 U.S.C…………………………………………………………………………1 and passim § 1501 (“the Mandate”) of the Act………………………………….......1 and passim 28 U.S.C. § 455, “Disqualification of justice, judge, or magistrate judge” (80 Pub. L. 773, 62 Stat. 869 (1948); amended 1990)………………………………………...26-27 28 U.S.C. § 455(b)(4)………………………………………………………………………….27 28 U.S.C. § 455(b)(5)………………………………………………………………………….27 28 U.S.C. § 455(c)..……………………………………….............................................26-27 28 U.S.C. § 455(d)…………………………………………………………………...….27 n.16 RULES ABA Model Rules of Prof’l Conduct, “Maintaining The Integrity Of The Profession”, v R. 8.2 (“Judicial And Legal Officials”) (2010) & cmt. [3]………………………..…10 Code of Conduct for United States Judges (“Code of Conduct”) (1973; amended 2009; revised 2011)………………………………………………………………..2, 37, 39 n.31 Code of Conduct, Canon 3C(2)………………………………………………………………27 Code of Conduct, Canon 4C……………………………………………………………..29-30 S. Ct. R. 24, “Briefs on the Merits: In General”…………………………………………...7 OTHER AUTHORITIES Leslie W. Abramson, Appearance of Impropriety: Deciding When a Judge's Impartiality ‘Might Reasonably Be Questioned’, 14 Geo. J. of Legal Ethics 55, 67 n.61 (2000), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 996485 (courtesy of Social Science Research Network)……………………..40 n.36 Leslie W. Abramson, Deciding Recusal Motions: Who Judges the Judges? 28 Val. U. L. Rev. 543 (1994), available at http://papers.ssrn.com/sol3/papers.cfm?abstract _id=999427 (courtesy of Social Science Research Network)……………..11 & n.12 John S. Adams, Chief U.S. District Judge sends racially charged email about president, Great Falls Trib., Feb. 29, 2012, 3:20 p.m., at http://www. greatfallstribune.com/article/20120229/NEWS01/120229014/Chief-U-S-District- Judge-sends-racially-charged-email-about-president………………………..32 n.23 Dante Alighieri, Inferno (Henry Wadsworth Longfellow trans., 1909) (early 1300’s), Canto V, ll. 4-6, 9-13, 15, available at http://www.online-literature.com/dante/ inferno/5/…………………………………………………………….……………………..9 vi Amos 5:10-12 (New International Version)……………………………………………..2, 3 Paul Bedard, 31 Democrats accuse court Republicans of ethics violations, Wash. Examiner, Washington Secrets section, Mar. 6, 2012, 4:42 p.m., http:// washingtonexaminer.com/politics/washington-secrets/2012/03/31-democrats- accuse-court-republicans-ethics-violations/344526.……………………….....23 n.14 Bertolt Brecht, Die Lösung (“The Solution”) (c. 1953)…………………………....34 n.27 Br. of Amicus Curiae Freedom Watch in Supp. of Neither Party and on Issue of Recusal or Disqualification of J. Elena Kagan, Jan. 6, 2012, mot. denied Jan. 23, 2012, reh’g denied Feb. 27, 2012, available at http://www.freedomwatchusa.org/ pdf/120105-%2011-393,%2011-400%20ac%20Freedom%20Watch.pdf…...7, 10-15 Br. for the United States as Amicus Curiae, May 2010 (in Golden Gate Restaurant Ass’n v. City & County of San Francisco (07-17370, 07-17372) (9th Cir. 2008), pet. for cert. denied June 28, 2010 (No. 08-1515)), available at https://www.dol. gov/sol/media/briefs/goldengate(A)-05-2010.htm (courtesy of the Department of Labor)……………………………………………………………………………………...17 Common Cause, Supreme Court Justice Clarence Thomas’ failure to disclose income of spouse (undated), at http://www.commoncause.org/atf/cf/%7bfb3c17e2-cdd1- 4df6-92be-bd4429893665%7d/JUSTICE%20THOMAS%27%20FAILURE%20TO %20DISCLOSE%20INCOME%20OF%20SPOUSE.PDF………………………….24 Geoffrey Chaucer, Canterbury Tales (late 14th Century), General Prologue, Knight’s Portrait, l. 72……………………………………………………………………….39 n.32 Jack T. Chick, Here Comes the Judge (2012), available at http://chick.com/reading/ vii tracts/1066/1066_01.asp…………………………………………………………….31-32 Justice Felix Frankfurter diary, quoted in The birth of the modern Constitution: the United States Supreme Court, 1941-1953, p. 92, available at http://books.google. com/books?id=eaAivaq6zVAC&printsec=frontcover#v=onepage&q&f= false………………………………………………………………………………….30 n.20 Grease (musical) (Jim Jacobs & Warren Casey (1971))…………………………………9 John Grisham, The Pelican Brief (novel) (1992)………………………….……..31-32, 35 Judge Learned Hand quote, in The Bill of Rights 73 (1958) (cited by Wikiquote, Learned Hand, http://en.wikiquote.org/wiki/Learned_Hand (as of Feb. 17, 2012, at 19:56 GMT))…………………………………………………………………………...22 Kathleen Hennessey, Virginia Thomas’ group backs off on calling healthcare law unconstitutional, L.A. Times, Oct. 22, 2010, at http://articles.latimes.com/2010/ oct/22/nation/la-na-virginia-thomas-20101022…………..……………………..25-26 Michael Jackson, Beat It, on the album Thriller (Epic Records 1982, Quincy Jones producer); single released 1983; video released 1983 (Antony Payne/Mary M. Ensign producers, Bob Giraldi director)…………………………………….10 & n.10 Ben Johnson, Documents Show Elena Kagan’s Conflict of Interest on ObamaCare, Floyd Reports, May 18, 2011, at http://floydreports.com/documents-show-elena- kagans-conflict-of-interest-on-obamacare/………………………………………15-17 Philip Johnston, ‘Judge Dredd’ powers for police urged, The Telegraph (London), Sept. 22, 2005, 12:01 a.m., at http://www.telegraph.co.uk/news/uknews/ 1498906/Judge-Dredd-powers-for-police-urged.html………………………………32 viii Judge Dredd (comic book series)….………………………………………………………..32
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