Justice Kagan Should Recuse Herself from Obamacare Case

This spring the U.S. Supreme Court will decide what may well be the case of the century — the constitutional challenge to Obamacare. But will the case be heard by eight or nine justices?

Before the health care law was even passed, the Department of Justice had been meeting to develop a strategy for defending the law from constitutional attack. Involved in this effort was none other than Elena Kagan, now the newest Obama appointee to the Supreme Court.

Federal law requires Supreme Court justices to recuse from a case if they had earlier “participated as counsel” in the case. Justice Kagan did just that when she was Obama’s solicitor general, but has never explained why she believes she is nevertheless justified in sitting on the case under this standard.

One simply can’t be the coach and referee in the same game. At best, knowing the playbook will color your judgment, and at worst, you’ll be on the lookout for chances to give your former team an advantage.

Here are the facts. It took two lawsuits to get “the most transparent administration in history” to release emails detailing Kagan’s involvement in the Obamacare defense. Those emails show that, in a highly unusual move, she ordered her staff to become involved in the defense before the law was even passed.

Perhaps this turn of events is explained by the fact that, upon passage of Obamacare, Kagan’s reaction to a confidant was “I hear they have the votes, Larry!! Simply amazing.”

Possibly most damning is the fact that Kagan received privileged internal strategy about the case. We know this because the Obama administration redacted portions of Kagan’s emails under a Freedom of Information Act exemption that specifically prevents the disclosure of government deliberations.

Kagan is prohibited from sharing that privileged information even with her colleagues on the Supreme Court when they in turn deliberate on Obamacare.

In sum, Kagan’s direction of the administration’s defense, as well as her inclusion in “let’s run this by the boss” discussions about the government’s strategy, constitute more than enough participation as counsel to require her recusal under the law.

To be fair, as the calls for Kagan’s recusal have intensified, some have rushed to her defense, suggesting that she had insulated herself sufficiently from her office’s defense of Obamacare.

Her deputy at the Solicitor General’s Office, Neal Katyal, has said that she was “walled off from Day One.” Why anyone thought Obama’s top lawyer had to be walled off of such a monumental case in the first place is revealing in itself.

In any event Katyal apparently breached that wall with impunity by suggesting that she attend Obamacare strategy meetings, by promising to bring her in such meetings “as needed,” and by copying her on internal emails discussing defense strategies.

Or perhaps Katyal simply regarded “Day One” as occurring later in the process, such as after the Obamacare challenges were actually filed or after Kagan was put on the short list for a Supreme Court nomination.

But by those times Kagan was already too involved in the government’s defense to later sit on the case as a judge. Legally speaking, pre-suit participation in a case still triggers recusal.

The stakes cannot be higher. The Supreme Court will determine whether the federal government has the power to mandate that every American purchase and maintain government-approved insurance from birth until death – all in the name of regulating interstate commerce.

With such a closely divided court, it may all come down to Justice Kagan’s vote, but her vote is too tainted. To preserve the integrity of our Supreme Court on the most important case of the century, Justice Kagan should recuse.

Carrie Severino is policy director and chief counsel of the Judicial Crisis Network. The piece originally appeared in the Washington Examiner.

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6 replies »

  1. So a right wing dingbat thinks that a “left wing” justice should recuse herself because said right wing dingbat knows how she’s going to vote on the ACA.
    I know how EVERY justice is going to vote on the ACA and I knew how every justice was going to vote on the most important case of the last 60 years, Bush v Gore.

    So we should recuse the Supreme Court for every vote. Or lets just abolish it….

  2. “The attempts by both the Thomas-haters and Kagan-haters to unfairly influence the outcome should be discouraged, not given voice here.”

    Sounds like a good balance – one’s for vote will cancel the other’s against vote.

  3. Keep up the heat on this issue, because these 9 people on the highest court in this country have an obligation to show by example to do what is right and the standard of the law. You are biased and not objective in a ruling, then you should not be making a ruling. What the hell is wrong with this basic principle? Yeah, there is partisan politics at hand here, and those calling the post partisan may need to be a bit more transparent about their commenting about it. Here’s mine: Obamacare/PPACA is a sh–ty legislative experiment that has gone so south, not even a septic tank could go so deep to contain it. We need health care cost control and balance in health care interventions, but, it is not about politicians solely making the rules and changes. Anyone who continues to advocate solely for this legislation to stay as is has no other agenda but personal benefit, party partisan support, or sheer cluelessness to think Democrats are concerned with the public welfare. Hey, if that were so, why did Pelosi and Reid get exclusions for their constituients? How do you spell hypocrisy in Washington? I-N-C-U-M-B-E-N-C-Y!!!

  4. This post has everything to do with partisan politics and little to do with medicine. The attempts by both the Thomas-haters and Kagan-haters to unfairly influence the outcome should be discouraged, not given voice here.

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