Let me pose two follow-up questions to my consideration of the question whether Justice Kagan would be required to recuse herself from the Obamacare litigation even if she had actually been absolutely “walled off” from that litigation while Solicitor General:
1. Consider this hypothetical: Let’s say that in January 2010 President Obama met with Solicitor General Kagan and told her (a) that she was a leading candidate for the next Supreme Court vacancy, (b) that it was important to him that any justice he appointed be able to take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge, and (c) that he was instructing her not to exercise her ordinary duties as Solicitor General on litigation involving his health-care legislation so that she would not be clearly disqualified (under 28 U.S.C. § 455(b)(3)) from taking part in deciding the litigation as a justice. Under these hypothetical facts, would Justice Kagan have to recuse herself under 28 U.S.C. § 455(a) because her “impartiality might reasonably be questioned”?
2. How does the walling-off of Kagan from the Obamacare litigation (whether the purported absolute walling-off or the “plausible deniability” version that seems in fact to have been pursued) differ materially from the hypothetical in question 1? In other words, how is it that the walling-off wouldn’t have conveyed to Kagan exactly the same messages that Obama in the hypothetical expressly stated?
I’ll note that my discussion in both this post and the previous one assume that the walling-off of Kagan was not purely a matter of her own initiative but instead implemented a White House decision (even if one spurred by Kagan). It seems to me farfetched that Kagan, in order to bolster her candidacy for a Supreme Court nomination, would unilaterally declare that she wouldn’t carry out the ordinary duties of her office of Solicitor General with respect to Obamacare litigation.