Elena Kagan: The ObamaCare Recusal That Wasn't
When the U.S. Supreme Court releases its decision on the fate of the Patient Protection and Affordable Care Act, Justice Elena Kagan will cast a vote that should not have been counted. The relevant rule requires that Supreme Court justices recuse themselves if in their previous capacity they served as “counselor or advisor” concerning a current matter before the Court, or if there is anything about the proceeding by which the justice’s impartiality can reasonably be called into question.
E-mails released to Judicial Watch revealed that when in 2010 Obamacare passed and Ms. Kagan was solicitor general, Ms. Kagan viewed the passage as “simply amazing” and that she assigned a deputy in her office to help prepare legal defenses to any challenges to ObamaCare. When in another e-mail she was asked for her opinion on a meeting to discuss legal defenses to ObamaCare, Ms. Kagan replied, “what is your phone number?,” indicating either that she had too long-winded a response or that she foresaw a possibility that her e-mails might force her to recuse herself if she sat in review of the law, or both. At any rate, she had in fact participated as “counselor or advisor” of the law when she was solicitor general, and she is clearly not impartial about the fate of ObamaCare, so she should recuse herself in this case.
But she won’t. The problem is that recusal of a Supreme Court justice is self-executing. That is, the Supreme Court justice has to do it herself.
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