Professor Richard Epstein weighs in on Justice Kagan’s obligation to recuse herself in the Obamacare cases.
When [ObamaCare] does get [to the Supreme Court], the biggest issue might well be whether Justice Elena Kagan recuses herself from the deliberations given her service as Solicitor General before he confirmation last June.
The claim here is far from frivolous. It is not as though people thought that no constitutional challenge would be lodged against the statute. And it seems highly unlikely that the chief appellate lawyer of the United States would not weigh in on a statute that is likely to make it to the Supreme Court. Were this an ordinary case, I have no doubt that Kagan would bow out. But with the stakes so high, and the political terrain so uncertain, one can only wonder.