I’ve run across a badly confused exchange over Justice Kagan’s non-recusal from the first Obamacare case (NFIB v. Sebelius). Let me try to sort out the confusion.
1. Let’s start by laying forth the straightforward case that Kagan had a legal duty to recuse herself. (I briefly outline that case here and invite readers to follow these links for a more detailed discussion and documentation.)
a. Under 28 U.S.C. § 455(b)(3), a justice has a legal duty to recuse herself from a proceeding in which the justice “has served in government employment and in such capacity participated as counsel [or] adviser … concerning the proceeding.” Any such “participat[ion]” would appear to be disqualifying. As with financial interests that trigger disqualification, the statute does not set forth a minimal threshold.
b. In her capacity as solicitor general, Elena Kagan was personally involved, even if only to a limited degree, in advising how to defend against challenges to Obamacare. Among other things:
– In January 2010, Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.”
– In March 2010, Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.”
– Katyal and Kagan then consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.”
Therefore, Kagan had a duty to recuse under section 455(b)(3).
(Kagan, it seems, minimized her participation in the Obamacare litigation in order to enhance her viability as a Supreme Court candidate. The Obama White House, after all, would have been much less inclined to nominate her if the public record—rather than documents later obtained through FOIA requests—had revealed her duty to recuse.)
2. In a recent New York Times op-ed, Gabe Roth of Fix the Vote asserts that Kagan was required to recuse herself from the Obamacare case because her “experience in the Obama administration constituted ‘significant involvement’” in the Obamacare cases. Perhaps because of space limitations, Roth doesn’t specify what “experience” he is relying on. More importantly, the “significant involvement” standard that he invokes is the standard under the Supreme Court’s application of the Due Process Clause. Perhaps because of the focus of his op-ed (which claims that the Supreme Court “is being hypocritical” on recusal issues), he doesn’t bother to make the much clearer case for Kagan’s recusal under section 455(b)(3).
3. In a letter to the editor, Harvard law professor Charles Fried takes issue with Roth on the same “significant involvement” standard. On Balkinization, law professor Marty Lederman goes further and asserts (without acknowledging the contrary evidence) that Kagan “didn’t have any involvement at all” in the Obamacare litigation.
4. Roth feebly responds to Fried and Lederman by invoking the “appearance of impropriety” standard under the U.S. Code of Conduct for U.S. Judges. Roth notes that the Code of Conduct isn’t binding on Supreme Court justices. But it’s doubly strange that he even invokes it: That same standard is embedded in 28 U.S.C. § 455(a), which is binding on justices. And, more importantly, he completely ignores section 455(b)(3). He also doesn’t cite any of the actual evidence of Kagan’s participation in the Obamacare litigation but instead relies only on the fact that Kagan was SG when Obamacare was enacted. [I’ve added the preceding sentence to my original post.]