What If Kagan Had Actually Been “Walled Off” from Obamacare Litigation?

by Ed Whelan

As I’ve summarized it, I believe that there’s a powerful case that then-Solicitor General Elena Kagan “participated as counsel [or] adviser” in connection with the Obamacare litigation now before the Supreme Court—in which case her recusal would be required under 28 U.S.C. § 455(b)(3). (I remain eager to encounter serious counterarguments.) As point 3 in my summary post notes, the evidence certainly seems to refute the claim that Kagan was “walled off from Day One” from DOJ’s defense of Obamacare.

But let’s entertain here the counterfactual assumption that Kagan had actually been “walled off” from DOJ’s defense of Obamacare and consider what this would mean:

1. For starters, it’s important to have the relevant timeline in mind:

a. As early as January 8, 2010, senior leadership at DOJ began “put[ting] together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending” and “hoped that OSG [the Office of the Solicitor General] could participate.” [See page 1 of this set of documents.]

b. The House of Representatives approved the Obamacare legislation on March 21, 2010. (The Senate had approved it in December 2009.) President Obama signed it into law on March 23, 2010.

c. Justice Stevens announced his resignation on April 9, 2010.

d. President Obama nominated Kagan to fill the Stevens vacancy on May 10, 2010.

2. As law professor Jonathan Turley has put it (in his sober review of the evidence bearing on recusal), in the ordinary course

[i]t would [be] expected that the Administration’s top litigator in the Supreme Court would have been consulted on the Act and its constitutionality. While the Solicitor General only argues in the final stage of litigation before the Supreme Court, it is common for her office to be consulted with as part of a comprehensive strategy in a high-profile case.

I’m not aware that anyone disputes that this is how things would ordinarily operate.

3. If Kagan had been “walled off” from the outset, that would mean that three months before Justice Stevens even announced his resignation, the White House made the determination that Kagan’s potential ability to take part in deciding the Obamacare litigation as a justice was so important to it that she should not exercise her ordinary responsibilities on the matter as Solicitor General. Again, the White House would have made this determination before it knew that a vacancy would even exist. The White House’s obvious interest was in having a nominee whom it regarded as a certain vote for Obamacare, and Kagan would have had keen firsthand knowledge that this was the White House’s interest.

4. Now, to be sure, it’s no surprise that a White House would select a Supreme Court nominee whom it believed certain or very likely to support the constitutionality of its signature legislative initiative. But the hypothetical absolute walling off of Kagan from exercising her ordinary responsibilities of office (just like the badly incomplete actual effort to distance her from the matter) was an extraordinary measure that necessarily made Kagan fully aware of the high priority that the Administration (and her friends and former close colleagues in the Administration) placed on her voting to uphold Obamacare. In other words, much more so that in the usual situation, a reasonable person would regard Kagan to be, as Turley puts it, “a pocket vote for the President.”

Why wouldn’t this present a situation in which Kagan would have to recuse herself under 28 U.S.C. § 455(a) because her “impartiality might reasonably be questioned”?

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