Not many people realize what an innovative concept an independent judiciary was when the Constitution was ratified in 1789. In the United States, judges would not be dependent on the executive; there would truly be three distinct branches of power.
Supreme Court Justices would serve for life during good behavior, in part to ensure their decisions were not subject to changing political winds. But because a judge’s responsibility is to impartially uphold the Constitution, federal law requires them to decline to take part in cases in which they may be unable to be impartial. This is known as recusal.
There have been calls for two sitting Justices — Clarence Thomas and Elena Kagan — to recuse themselves from deciding the constitutionality of the Affordable Health Care Act for claimed conflicts of interest. (Though the Affordable Health Care Act is not officially on the Supreme Court’s docket yet, the Court is widely expected to take it up.)
Explore the constitutional role of an independent judiciary, the federal law requiring their recusal in certain situations, and the calls for the two Justices to step aside.
What strategies did you use to engage your students with this lesson? What, if any, barriers did you face?