Bench Memos

Barking Up Wrong Tree on SCOTUS Recusals

Yesterday Fox News asked me to comment for this piece on the Left’s crusade to force Justice Thomas to disqualify himself when the Obamacare litigation reaches the Supreme Court. The Left’s allegations are without merit, but I mention the Fox News piece because it is fascinating to me that this specious story continues to get ink while almost none has been dedicated to the serious questions surrounding Justice Kagan’s potential recusal obligations in the same litigation. As I explained in a series of posts (here, here, and here), recently released documents make it very clear that, as then–solicitor general, Justice Kagan was involved in the legal defense of Obamacare. DOJ hasn’t exactly been volunteering documents or information, which makes it very difficult to evaluate just how involved Justice Kagan was, but that fact pattern seems quite a bit more compelling than what has been presented in the multiple rounds of stories about Justice Thomas.

Here is a tidbit for some enterprising journalist to run with. 18 U.S.C. 207 sets forth restrictions on the sort of work that “former officers, employees, and elected officials of the executive and legislative branches” can undertake after leaving the public sector. According to DOJ, under Section 207(a)(2):

You are prohibited for two years from communicating to or appearing before an employee of a Federal court or agency on behalf of another person, with the intent to influence, on a particular matter involving specific parties which you know was pending under your responsibility during your last year of government service and in which the United States is a party or has an interest. (italics mine)

Willful violation of this prohibition carries a sentence of up to five years in prison

In other words, if Justice Kagan had resigned from the solicitor general’s office and joined a law firm, she could have been imprisoned for willfully participating in the cases regarding Obamacare, simply on the basis that it “was pending under [her] responsibility during [her] last year of government service.”

I am not suggesting that this same standard should apply to Supreme Court justices, nor am I suggesting that the recusal standards that currently apply to the justices need to be revised. What I am suggesting is that it ought to at least be interesting to the press, and to members of the committees of jurisdiction in the House and the Senate, that Justice Kagan may end up participating in a case that she might have been criminally barred from touching if she had merely moved to a law firm. 


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