New Report Examines Why Kagan Should Recuse Herself


By Hadley Heath

The Judicial Crisis Network (JCN) has taken the lead on investigating Justice Elena Kagan's involvement with the Affordable Care Act as its legal defenses were being crafted.  Kagan served as Solicitor General during the law's passage in 2010, and now sits poised to pass judgement on the law's Constitutionality at the Supreme Court level.  

JCN's Carrie Severino today published a paper that details why Elena Kagan should recuse herself from any cases involving the ObamaCare legislation.  "To use a sports analogy," Severino writes, "would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?"

Severino examines the evidence that Kagan was directly involved in the defense of ObamaCare.  The main points:

  1. Kagan took early and aggressive action to involve her office in ObamaCare.
  2. Kagan made key staffing decisions starting in January 2010.
  3. Kagan was part of the deliberative process in the ObamaCare defense strategy.

Americans on boths sides of this issue are ready for a clear and unambiguous ruling from the Supreme Court.  Challengers and defenders of the law have both filed cert petitions asking the High Court to rule.  But don't these parties want and deserve opinions from justices who can rule without bias?  If Kagan does not recuse herself, and she rules to uphold the Affordable Care Act, then any 5-4 ruling from the SCOTUS will be suspect.

Kagan recused herself from 29 of the 82 cases the Court decided during her first term because of her work as Solicitor General.  In this term, she's already recused herself from 69 cert-stage cases.  Clearly, she understands that her involvement as Solicitor General prevents her from ruling without bias on other laws.  Why does she see ObamaCare as different?

Interestingly - as Severino notes in her paper - had Kagan moved from her position as SG to a private law firm and sought to be involved with the ACA litigation, she would have been criminally barred from doing so under 18 U.S.C. 207.  In Severino's words, it is "strange that the standards should be lower for former government officials who move to a judicial role than those who simply return to private practice."  Read her paper in full here.



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