Should Justice Kagan Recuse Herself From Health Care Reform Case?

Questions have been raised about whether it is proper for Elena Kagan to hear the Affordable Care Act lawsuit.

With the Supreme Court now on track to hear the lawsuit challenging the Constitutionality of the Affordable Care Act in March, with a June ruling likely, the political maneuvering is beginning. One of the more obscure arguments has been over whether any members of the Court should recuse themselves from hearing the case due to conflicts of interests. On the left, the argument that Clarence Thomas ought to recuse himself because of his wife’s involvement with Tea Party groups that have advocating for the law’s repeal has been around for months. As I discussed when I looked at that issue in February, as well as a post last October, there seems to be very little merit in the argument that Thomas himself has a conflict requiring recusal under the Canons of Judicial Ethics is a pretty far stretch to say the least, and completely without merit to say the most. More recently, some on the left have argued that both Thomas and Justice Scalia are disqualified because they have attending Federalist Society gatherings on a regular basis. To be honest, there’s even less support for this argument than the one advanced earlier this year, but of course this is politics not the law so that probably doesn’t matter to those advancing the argument.

Not surprisingly given the nature of this case, the right has it’s own recusal argument to make and it focuses on current Associate Justice and former Solicitor General Elena Kagan:

Conservative legal activists on Wednesday renewed their calls for Supreme Court Justice Elena Kagan to abstain from cases involving President Obama’s healthcare law.

Conservatives say Kagan should recuse herself from suits over the law’s individual mandate because the administration began planning its defense while she was solicitor general. Kagan has recused herself from dozens of cases because of her work in the Justice Department, but has shown no signs so far of sitting out healthcare suits.

The justices are slated to meet privately Thursday to discuss whether they should hear a challenge to the healthcare law’s constitutionality. Ahead of that meeting, the conservative Judicial Crisis Network (JCN) reiterated suspicions about Kagan’s objectivity.

“Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case,” JCN said. “Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself.”

The JCN paper cites previously released emails in which Justice Department officials discuss their preparations for defending the healthcare law in court. The documents do not provide concrete evidence that Kagan was personally involved in the planning, but JCN has inferred from the emails that Kagan played an active role

The groups paper [PDF] appears to be based on the same emails that are raising some eyebrows on the right today that show Kagan “excited” about the passage of the new health care law in March 2009:

At her confirmation hearing in 2010, now-Supreme Court Justice Elena Kagan that she “was not” asked at any time to give her opinion on the merits of the Obamacare legislaton. Newly released emails suggest that whether or not she was asked, Kagan was not shy about her enthusiasm for the bill that eventually became law.

Kagan, while serving as President Obama’s Solicitor General, exchanged emails with her then-colleagues in the Justice Department indicating her support for the Obamacare legislation when it was under consideration in Congress.

“I hear they have the votes, Larry!! Simply amazing,” Kagan wrote, in an email obtained by Judicial Watch, on the day Obamacare passed through Congress. Larry Tribe, a Harvard Law professor and Supreme Court attorney who served as “senior counselor for access to justice” in the Department of Justice (DOJ), replied to Kagan that the bill’s passage was “remarkable.”

“And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” Tribe added in delight, and in derision for the pro-life Democrats.

There are two relevant pieces of law that govern recusal of Federal Judges. First, there’s 28 USC 455(a):

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Second, there is the Code of Conduct for United States Judges, specifically Canon 3(C)(1), which is codified at 28 USC 455(b) and covers circumstances where recusal is mandatory:

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:

(a)  the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or lawyer has been a material witness;
(c)  the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:

(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii)  acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
(e) the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy

The only relevant question in Kagan’s case is whether she was involved in formulating the legal strategy for the government’s defense in the lawsuits that had been filed against the Affordable Care Act even before she was nominated to the Supreme Court. The emails that have been released to date don’t strike me as reaching that threshold at all, though. The fact that Kagan, obviously a Democrat, was pleased over the passage of what was the most important piece of legislation of the First Term of the Administration she worked for is no surprise, and doesn’t necessarily create an ethical conflict, although there are some problematic areas that raise concern about whether the ethical lines would be crossed by Kagan sitting to hear the case. Jonathan Turley, who is by no means a conservative points them out:

Of greater concern, in my view, is a separate email exchange on March 21, 2010 (the day PPACA was passing the House) with her top deputy Neal Katyal. Associate Attorney General Tom Perrelli had send a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. Kagan was included in the mailing, which would seem to confirm her offices involvement in the litigation planning. As head of that office, it raises a serious appearance problem and may reflect additional conversations that could have occurred between her and Katyal or other lawyers in effort. This was already one of the top priorities of the Administration and one would expect a comprehensive team at Justice Department that would include the Solicitor General’s office.

At the very least information likes this raises questions that ought to be answered. The problem is, the Justice Department is refusing to release anymore emails or other documents that might shed light on Kagan’s involvement in the preparation of defenses to the litigation against the PPACA:

Back in July, some 49 members of Congress signed a letter asking DOJ to produce certain documents on then-Solicitor General Kagan’s involvement with the ObamaCare case. Four months later the Justice Department wrote back declining to produce the documents. In that letter, Assistant Attorney General Ronald Weich explained that the department has “grave concerns about the prospect of a congressional investigation into the pre-confirmation activities of a sitting Supreme Court Justice.” Justice Kagan, he added, had addressed the issue of her ObamaCare involvement during her confirmation hearings.

In a letter to U.S. Attorney General Eric Holder on Friday, GOP Sen. Lamar Smith noted that in rejecting the request for documents, the Justice Department “did not assert any legal privilege to support the decision but instead concluded it would be ‘unseemly’ to comply with my request.” If the Justice Department does intend to assert a legal privilege, he added, he’d like to be informed of the basis for it by Friday.

In her testimony at her confirmation hearings, Kagan said she was not involved in preparing defenses to the lawsuit, and as Turley notes, Attorney General Eric Holder at one point said publicly that efforts were made to shield Kagan from any such discussions:

“I can tell you that certainly, one of things that we did while she was solicitor general was physically-physically-literally move her out of the room whenever a conversation came up about the health care reform legislation . . . I can remember specific instances in my conference room when we were going to discuss that topic. We asked Justice Kagan to leave and she did.”

If that’s true then that may be enough to deal with this issue and answer the questions. But yet, as Turley notes, there is that email conversation, and there is the fact that Justice is refusing to release any more documents. At the very least, it strikes me that those documents should be released. If it’s true that Kagan wasn’t involved in litigation planning then the documents should reflect that. If they show that she was, however, then it strikes me that she may need to recuse herself. Recusal isn’t anything new for Kagan, though. During her first year on the Court, Kagan recused herself from more than half the cases that were heard because of her involvement with them as Solicitor General. If she was equally involved with the ObamaCare litigation before being elevated to the Court then she ought to consider doing the same here.

Lloyd Green likens Kagan’s position to that of another former Justice Department official, and political partisan, who was elevated to the Supreme Court:

Elena Kagan meet Bill Rehnquist. That Bill Rehnquist.

Like Kagan, Rehnquist was once young, smart, and ambitious. Like Kagan, Rehnquist served as a political appointee at the Department of Justice. And like Kagan, Rehnquist was once an Associate Justice of the United States Supreme Court.

But Kagan and Rehnquist have one more thing in common. And it is a big one. As a Supreme Court Justice, each was asked to pass upon the assertions of constitutionality invoked by their former bosses.

In the case of Justice Rehnquist, the Supreme Court was confronted by Richard Nixon’s claim of Executive Privilege in connection with the Watergate Tapes. Rehnquist had served in the Nixon Justice Department under John Mitchell. And, Nixon had referred to him as “Renchberg” in a taped conversation. Rehnquist was on the Team.

However, faced with Nixon’s appeal from a lower federal court order directing Nixon to hand over the Watergate Tapes, Rehnquist recused himself and allowed the Supreme Court to decide the case without his input or vote.

In the end, the Court rejected 8-0 Nixon’s claim of Executive Privilege. Nixon went on to resign after the House Judiciary Committee subsequently voted to impeach Nixon.

A legal ethics expert, however, doesn’t believe that either Kagan or Thomas should be required to step aside in this case:

James Sample, a law professor at Hofstra University School of Law who studies recusal issues, said the outside groups’ calls are misplaced.

“I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said.

The standard for recusal is whether a judge’s or justice’s impartiality can be reasonably questioned.

Mr. Sample said Justice Thomas’ judicial approach is well-known and it’s unlikely that his wife’s associations would influence him in this case. As for Justice Kagan, he said her “extraordinarily limited exposure to the health care policy when she was in government service is, I think, just a nonissue.”

Should Elena Kagan do the same thing as Rehnquist? It’s difficult to say based on the information that has been provided publicly and, ultimately this is a question that is within the discretion of the individual Justice to make. No other member of the Court is going to require Kagan to recuse herself, and there’s nothing that Congress can do about this. My preference would be that the Justice Department release the documents so that the public can be assured that there is no impropriety here, but if Justice Kagan believes she can decide this case on the law and not based on her political positions and that she is not conflicted out as discussed above(and if Justice Thomas believes the same), then I’ll take her word for it absent evidence to contrary.

FILED UNDER: Healthcare Policy, Law and the Courts, US Politics, , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. ponce says:

    Is there a lazier argument than, “They did it to?”

    As if anything Kagan has done compares to the orifice of corruption that Ginni Thomas wields for her husband.

  2. The second clause of Canon 3(C)(1)(b) you cited catches my attention:

    “…or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter…”

    As a legal layperson, that makes me wonder about Justice Kagan’s association/relationship with Donald Verrilli, who was Deputy Attorney General during the time Kagan was Solicitor General. Mr. Verrilli is now the Solicitor General. If he’s going to argue the case before the Court representing the United States, as is the SG’s role, isn’t that another valid avenue to assess the appropriateness of Justice Kagan’s recusal?

  3. @ponce:

    I knew I should not have expected partisans to look at this as anything other than an opportunity for a political bash fest.

    I addressed the Thomas issues in February, you can find the link at the top of this post. Take a look at it. This post is about Elena Kagan.

  4. ponce says:

    I knew I should not have expected partisans…


    Do you really see yourself as some sort of neutral arbiter of the daily news?

  5. @ponce:

    I was analyzing the law you are spouting partisan talking points.

  6. ponce says:


    You didn’t answer my question.

  7. Ponce,

    I did. Provide me with a coherent legal argument based on 28 USC 455 and the Canons and we’ll talk

  8. ponce says:

    I’m much more interested in your opinion of yourself, Doug.

    I really want to know if you don’t consider yourself a partisan.

  9. Off topic, Ponce. Not going there.

  10. ponce says:

    I rest my case.

  11. Tsar Nicholas says:

    Since when do ethics even apply to left-wing Democrats?

  12. Loviatar says:



  13. Hey Norm says:

    WOW..Doug finds tit-for-tat in the Supreme Court.
    I fail to see the equivilance between Kagan, who was evidently intentionally shielded from discussions and has an extensive track record of recusal…and Thomas, who for years intentionally hid his wife’s lobbying income and whose household income is affected by, and his wife’s professional reputation depend on, over-turning.
    Maybe I’m missing something. Certainly James Sample seems to have missed the monetary issue in the quote above. Follow the $$$ as they say.
    I have to say that Doug is able to fantasize tit-for-tat in some other ridiculous situations as well so…

  14. Dazedandconfused says:

    If she doesn’t recuse herself, to what court does one take this for appeal?

    Just kidding, of course. I’m asking if it’s moot.

  15. Barry says:

    @ponce: Seconding this – when Thomas is impeached for bribery, then the right will have a leg to stand on.

  16. Hey Norm,

    1. Thomas amended his financial filings

    2. That issue is not a ground for recusal under the law or the Canons.

    Nice try, though

  17. Liberty60 says:

    Shouldn’t we just let the marketplace handle this?

  18. Liberty60 says:

    oops sorry- wrong trope.

    The correct one is, “where in the Constitution does it require Kagan to recuse herself?”

  19. Liberty 60,

    I pointed you to the statute, and to the Canons of Judicial Ethics.

  20. Liberty60 says:

    Meanwhile, in a completely off-topic, totally unrelated note that in no way has anything to do with the subject at hand, Scalia and Thomas dine with healthcare law challengers as court takes case

  21. @Dazedandconfused:

    The recusal question is solely in the discretion of the individual Judge or Justice. As I said, no other member of the Court is going to force a colleague to recuse themselves, although it’s possible that there have been times where a Justice has attempted to persuade a colleague that they should do so. Those conversations, of course, would be be private.

  22. Hey Norm says:

    @ Doug…
    Please explain how Thomas’s household income consisting of hundreds of thousands of dollars earned by lobbying, which he hid for years, much of it against the ACA does not satisfy “…judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter…” and create a situation where the Judges impartiality might reasonably be questioned. Certainly it has been reasonably questioned except by partisans like yourself …ipso facto…
    There is absolutely no doubt that her status as a lobbyist, and thus her income, is enhanced by over-turning and the appearance of access and influence.

  23. Ron Beasley says:

    @Doug Mataconis: The law is always analyzed/interpreted through ideological filters.

  24. Hey Norm,

    The Chief Judge of the Third Circuit Court of Appeals is married to a woman who was at one time the head of the Pennsylvania branch of the ACLU. Is that impermissible too? The Canons apply to the Judge, not to his or her spouse, and unless you want to take the position that the spouse of a judge should not be allowed to work in the legal or political worlds at all, your argument is without merit.

    More importantly, there is no legal support for it. But then, of course, this isn’t about the law, it’s an amateurish political attack by people who haven’t liked Clarence Thomas for the past 20 years.

  25. Hey Norm says:

    @ Doug…

    “…The Canons apply to the Judge, not to his or her spouse…”

    The Canons specifically mention the spouse!!! WTF???
    We aren’t talking about spouses working on the legal or political world…we are talking about an anti-ACA activist who Thomas is on the record as agreeing with.
    You make no sensible argument…and write it all off to political attacks…when clearly it is you who is ignoring specific language in order to make a partian defense. To ignore Thomas’s political leanings, when he attended a [political conference on the very day the court agreed to hear arguments is foolish on the face of it.

  26. Moosebreath says:

    “The Chief Judge of the Third Circuit Court of Appeals is married to a woman who was at one time the head of the Pennsylvania branch of the ACLU. Is that impermissible too?”

    In cases involving the ACLU, hell yeah.

    “The Canons apply to the Judge, not to his or her spouse, and unless you want to take the position that the spouse of a judge should not be allowed to work in the legal or political worlds at all, your argument is without merit.”

    Norm did quote the Canons. And it should be obvious that a spouse should not be able to work as a lobbyist on the very issue which is being decided by the judge. But nice dismissal without even reading, as a true partisan would.

  27. Moosebreath,

    Unless she is an attorney for one off the parties, a party to the litigation herself, or someone with an ownership interest in one of the parties to the litigation then the recusal rules do not apply, no matter how much you want them to

  28. giatny says:

    Is there any evidence that Thomas has altered his rulings over the years
    to please his wife or advance her career??? I know of none. Even
    if they both personally dislike the law, the Constitutionality of it is a
    separate consideration. The question that applies to Kagan is not
    whether she personally oversaw all of the details, but rather would the product from her office have been contrary to her opinion and whether as Solicitor and a member of the Obama administration did she feel a sense of personal “ownership” of the legislation. To me its clear she did have an emotional attachment and should recuse herself. Expecting
    her to “kill her baby” or even view it objectively is a bridge too far.
    But isn’t a majority of 5 still needed as 4-4 is a tie??

  29. Console says:


    So we need evidence that Thomas is altering his rulings before we throw out his impartiality no matter how much he may financially profit from his rulings… but Kagan’s impartiality is out the window because of assumed “emotional attachment?”

    Did you really just make that argument? With a straight face?

  30. Console says:

    As for the Kagan topic, well, there really isn’t a topic because Doug himself pretty much admits ignorance on the point in question.

    Thomas though… Seriously? It wouldn’t be so bad if he wasn’t hiding the income until he got called out.

  31. Eric Florack says:

    The code of conduct you cite makes it a cut and dried case.
    The answer is yes.

  32. Console,

    Until the DoJ releases the E-Mails and other documents, we cannot say definitively what the answer to the Kagan topic is.

  33. Dazedandconfused says:

    They were fire-walling her off during deliberations of the Act, and the only reason to do that is if she was already a potential SC nominee?

    Then she gets the benefit of the doubt on the unreleased E-mails with me. Too unlikely she is so naive as to believe E-mails are private correspondence.

  34. jan says:

    If Solicitor General Kagan had worked for a republican administration, was herself a republican, and was then scheduled to sit on case as a newly minted SCOTUS, for what is considered to be a landmark decision, the dems would be rioting in the street if she wasn’t recused.

    To even try comparing Clarence Thomas’s circimstances with the degree to which Kagan has had a conflict of interest, dealing with ACA’s passage, is blind partisanship.

  35. Hey Norm says:

    Jan accusing anyone of blind partisanship is f’ing funny.
    Do you u derstand what “intentionally shielded” means? Do you have any proof otherwise?

  36. Hey Norm says:

    @ Doug….
    She clearly has a “financial interest” in the outcome. The Canon does not say ownership. It says “financial interest”. She has benefited from opposing the ACA, and will benefit from it being over-turned. Directly. I can’t believe that you do not see that conflict, even thru your partisan glasses.

  37. @Hey Norm:

    Nice job at playing amateur Judicial Ethics expert. But, as they say in baseball, he swings, and he misses.

  38. Hey Norm says:

    @ Doug…
    You keep saying that…while ignoring what the canon says in very plain language.

  39. I am aware of exactly what the Canons say, Hey Norm.

    What I am unaware of is the evidence that supposedly proves the case you are trying to make.

    But hey, nice try for what is so obviously a partisan smear job. You might win an award for this one.

    I am also unaware of what your argument has to do with the subject of this post.

  40. Hey Norm says:

    @ Doug…
    First the canon doesn’t apply to spouses….even though it specifically mentions spouses.
    Thenyou say it’s about ownership…but the canon says financial interest.
    Now you can’t see that hundreds of thousands of dollars constitutes financial interest.
    It’s typical for partisans, when the facts fail them, to fall back to ideology…but in your eyes it’s others who are being partisan. Do you understand the psychological concept of projection???

  41. Hey Norm says:

    Oh…and the link to the original post is your love of false equivalencies.

  42. @Hey Norm:

    Your partisan blinders are showing.

    Also, this has nothing to do with the topic of the post. So, I’m done with this discussion

  43. WR says:

    @jan: “To even try comparing Clarence Thomas’s circimstances with the degree to which Kagan has had a conflict of interest, dealing with ACA’s passage, is blind partisanship. ”

    Exactly. Because Thomas is only whoring himself out for money, so partisanship has nothing to do with it. It’s simple greed, which is the highest value in the Republican party.

  44. EddieInCA says:

    @Doug Mataconis:

    At the risk of being banned… You’re a coward. You’re a freaking coward. And a gutless one at that.

  45. Hey Norm says:

    Hahaha….Doug’s post brought up Thomas…but discussion of Thomas Has nothing to do with the topic of the post. Hahahaha

  46. I addressed the Thomas issue in February. Until there’s new information of substance rather than merely political biased insinuations, I’ve got nothing more to say.

  47. EddieInCA says:

    Shorter Doug:

    1. Don’t make me make sense of my arguments that don’t make sense.
    2. I don’t have to defend my indefensible positions.
    3. I’m taking my ball and going home.

  48. Eddie,

    Go read the October 2010 and February 2011 posts linked above. That is all I have to say.

  49. EddieInCA says:

    @Doug Mataconis:

    That would be #3 above. Thanks for making my point for me.

  50. Jeremy says:

    @Doug Mataconis:

    In Norm’s defense, the Canons do mention the spouse having some sort of financial benefit from the issue at hand, and the claim is that (I say claim because I have not studied the Clarence Thomas’ issue in-depth as of yet) Thomas’ spouse has earned a financial benefit from lobbying, so there is some ground there.

    My question, though, is whether or not the Canons are legally enforceable, like the US Code, or are they, as Captain Jack Sparrow might put it, just a set of “guidelines?”

  51. Jeremy,

    Yes they do. So when someone can show me that Virginia Thomas has a personal financial stake in the outcome of the litigation, rather than merely working for lobbying groups opposed to the PPACA, then we’ll have something to talk about.

  52. Jeremy says:

    @Doug Mataconis: They do, as in, they are legally enforceable, or they do as in they mention the spouse? I’m working on the former angle, not the latter.

  53. Jeremy,

    As I mentioned in my post, the Canons are enforceable in the sense that another judge can force a judge to recuse themselves, at least not at this level and not in any case I’ve ever heard of.

  54. Jeremy says:

    @Doug Mataconis: Okay, thanks, I was a little confuzzled over that.

  55. Hey Norm says:

    I thought you were done talking about it?
    Often when people are in error they insist on re-hashing it ad nauseum.
    So it’s normal…embrace it.

  56. I was answering the question of someone who, you know, actually asked a question respectfully. A strange form of behavior to see in a comment thread.

  57. Tompete says:

    You people bringing up Thomas are missing the point. What he does is irrelevant. The queston is about KAGEN. Why people feel the need to bring other people in to the argument baffels me. It usually happens because you can not defend your position and try to deflect. I see kids do it all the time…Why can’t I do it, Jimmy did it!!! Sounds so childish.

  58. Moosebreath says:

    So let’s see — on Kagan, Doug says “Until the DoJ releases the E-Mails and other documents, we cannot say definitively what the answer to the Kagan topic is.” So he’s clearly interested in going behind what is released publicly before making his mind up.

    On Thomas, Doug says “So when someone can show me that Virginia Thomas has a personal financial stake in the outcome of the litigation, rather than merely working for lobbying groups opposed to the PPACA, then we’ll have something to talk about.” In other words, he takes Thomas’s word for it that she has no financial interest, in spite of Thomas failing to disclose his wife’s income for years.

    Nothing partisan to see here, folks.

  59. C00kie021 says:

    I speak my mind , and when I do -the libs erase what I say. All I see are digs at Alito, Thomas and other non-left judges. Try being impartial by looking at the situation directly–not just from the left side.