At least eight of the Supreme Court’s nine members will soon decide whether to review the constitutionality of the Patient Protection and Affordable Care Act. The only question is whether Elena Kagan, the Court’s most junior justice, will also pass judgment on President Obama’s signature law or recuse herself because of her role in defending PPACA’s constitutionality as President Obama’s solicitor general.
As President Obama’s top advocate, Kagan headed the office responsible for formulating the administration’s defense of PPACA — and oversaw the arguments both on appeal and in the lower courts because of PPACA’s national importance. The president is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice. Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case. Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself. To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?
For the reasons set forth in this memo, I find it impossible for Justice Kagan to deny that she was directly involved in the defense of PPACA, and that she should therefore recuse herself from any consideration of PPACA’s legality before the Supreme Court.