As the various lawsuits against Obamacare, particularly those filed by over half the States, make their way up to the U.S. Supreme Court, questions abound as to whether Justice Elena Kagan ought to recuse herself from any proceeding in the matter. The principal reason for these questions come from the fact that prior to ascending to the Supreme Court, Kagan was Obama's Solicitor General when Obamacare was being formulated and debated.
The Bench Memos blog hosted by National Review Online has just started a series of posts analyzing the extent to which Kagan may have a conflict of interest:
The timeline of [Kagan's] nomination meant that she was already aware she was being considered for an anticipated Supreme Court vacancy by March 5 -- before the House voted on the Obamacare legislation on March 21 and the major lawsuits against the law were filed on May 23. Neal Katyal, her chief deputy, has stated that she was walled off “since Day One” on that lawsuit.Given the significant negative ramifications Obamacare has on the economy and our individual liberties (we can be penalized by the government for merely making a mental decision not to purchase health insurance), this conflict of interest issue with Kagan is important to follow.
But what we have recently learned (and many suspected beforehand) is that the administration’s defense of Obamacare was under way even before the bill became law and any lawsuit was filed. On January 8, Tom Perrelli was already organizing a meeting of DOJ bigwigs to “get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal agreed that the SG’s office should be involved, adding candidly, “Let’s crush them.” He then consulted with then-SG Kagan and reported that “Elena would definitely like OSG to be involved in this set of issues.” While Katyal was to be point for the office on the issue, he added that “we will bring in Elena as needed.”
Presumptively, Kagan would vote to uphold the constitutionality of Obamacare along with Justices Breyer, Ginsburg, and Sotomayor. Since one would expect Justices Scalia, Thomas, Roberts and Alito to strike Obamacare down, the fate of the legislation comes squarely down on Justice Kennedy who, despite having been nominated to the Supreme Court by Ronald Reagan, is a wild card. Removing Kagan from the equation effectively nullifies Kennedy's unpredictability.