Several readers wrote to me asking me to post on this.  It certainly is worth noting, because Elena Kagan’s involvement or not in whatever Obamacare appeals make their way to the Supreme Court could make a difference.

Justice Kagan did not recuse herself from consideration of Virginia’s request for the Supreme Court to take Virginia’s case before the 4th Circuit ruled, leading many to conclude that Kagan perceived no conflict which would require her to recuse herself from the case.  By contrast, Kagan did not participate in the decision yesterday involving the Arizona E-Verify law, because of her prior involvement in the issue when she worked as Solicitor General for Obama.

Judicial Watch, however, has uncovered e-mails which show that Kagan was involved at some level with the framing of Obama’s legal strategy on Obamacare:

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

Kagan needs to step aside from consideration of any matters involving Obamacare.  Unlike the hyper-ventilated accusations against Clarence Thomas because of his wife’s political activities, the conduct here involves Kagan personally and the subject matter of the litigation.

The impact of having Kagan recused is important, but only really comes into play if Anthony Kennedy votes with the liberals, or there is not a typical conservative-liberal split.  Assuming the usual 4-4 with Kennedy casting the winning vote, Kagan’s absence will not matter if Kennedy votes to strike down the Obamacare mandate. 

But, if Kennedy voted to uphold the mandate, and Kagan were recused, there would be a 4-4 split, which means that the lower court holding would prevail.  Since we don’t know how the appeals courts will rule, this does not result in a predictable outcome on the merits.

Beyond the end result, it is important for Kagan to recuse herself because while the nation does not have to agree with Supreme Court decisions, it is important that the decisions not be seen as tainted by prior activities of one of the Justices with regard to the subject matter of the decision.

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