Legislation’s fate in the hands of a woman who should have recused herself.

It is no secret that whatever ruling the United States Supreme Court reaches on the Patient Protection and Affordable Care Act (PPACA), the decision will have monumental repercussions for the nation and the Obama administration. Critical to that ruling is the ability by individual justices to render an impartial decision on the issue. Considering her history regarding healthcare reform previous to her court appointment, Justice Elena Kagan’s ability to be impartial is highly questionable.

In fact, during testimony by the Obama administration’s current Solicitor General, Donald Verrilli Jr., Kagan seemingly advocated on behalf of the government’s central argument for the individual mandate, contending that young Americans should be required to purchase health insurance because other Americans will subsidize their health care in the future, finishing one of Mr. Verrilli’s sentences for him. The critical part of the exchange:

Verrilli: To live in the modern world, everybody needs a telephone. And the – the same thing with respect to the – you know, the dairy price supports that – that the Court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that – you know, I suppose it’s theoretically true that you could raise your kids without milk, but the reality is you’ve got to go to the store and buy milk. And the commerce power – as a result of the exercise of the commerce power, you’re subsidizing somebody else –

Kagan: And this is especially true, isn’t it, General –

Verrilli: – because that’s the judgment Congress has made.

Kagan: – Verrilli, because in this context, the subsidizers eventually become the subsidized?

Yet questions about Kagan’s impartiality go beyond her apparent effort to coach Mr. Verrilli. With respect to law, Section 455 (b) (3) of Title 28 requires recusal when a judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” The law further states that a justice must recuse him- or herself from "any proceeding in which his impartiality might reasonably be questioned.“

Prior to her court appointment, Kagan was the Obama administration’s Solicitor General for 15 months. The Office of Solicitor General is tasked with supervising and conducting litigation on behalf of the government before the Supreme Court. Thus, there is no question that Ms. Kagan has served in governmental employment and, as a result, would be forced to recuse herself from a ruling on the healthcare bill if she participated as counsel, advisor or material witness in the government’s effort to prepare a defense of the healthcare bill.

Did she? During her court confirmation process in July of 2011, Republicans on the Senate Judiciary Committee asked Ms. Kagan if she had offered or been asked her opinion on the healthcare law or its constitutional merits. She answered, "No.” At that time, the most salient challenge to the PPACA was  U.S. Department of Health and Human Services v. State of Florida, et al. This case, filed by 26 state attorneys general, was considered the most likely challenge to the PPACA or its constitutional merits.

But there was also an indication that Kagan may have been splitting legal hairs. When the question of recusal came up, she contended that it was only necessary to withdraw from a case where she had “officially formally approved something,” “served as counsel of record” or “played any substantial role” in it. Kagan’s name does not appear on any filings regarding the healthcare law, and the statute in question does not clearly define “council” or “participated.” Yet case law gives guidance on the issue, and case law indicates that any personal participation is sufficient to trigger recusal, as Carrie Severino of the Judicial Crisis Network points out. The United States v. Gipson notes that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.”

Furthermore, other cases, including Laird v. Tatum, reveal that recusal can be trigged by one’s involvement in a case prior to the commencement of litigation. There is also case law suggesting that Kagan’s position as Solicitor General per se during the period when her office was preparing litigation to defend the healthcare bill is sufficient grounds for recusal. The critical distinction here is that while Kagan has testified that she was not involved with the case after it was filed on March 23, 2010, the possibility that she participated in meetings organized by top Justice Department officials three months earlier, when the DOJ was putting together strategies to defend the law against likely challenges, remains open to question.

And then there are the emails. Beginning in March of 2010, several emails from or to Ms. Kagan contained the words "Health care litigation meeting" in the subject heading. And those are the emails made available. Despite a Freedom of Information (FOIA) request, the Obama administration refused to turn over several others, stating that they were “protected by the attorney work product doctrine.” According to the DOJ, that protection included discussions by the Office of Solicitor General attorneys regarding “legal issues, arguments, and strategy concerning anticipated” litigation against the healthcare bill.

When Kagan’s nomination to the Supreme Court was announced, a particularly telling email exchange occurred. Neal Katyal, who succeeded Ms. Kagan as solicitor general, was her Deputy SG at the time. Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs, sent him an email asking if Kagan had been involved in preparation for litigation of the PPACA. "No, she never has been involved in any of it,“ he responded. "I’ve run it for the Office, and have never discussed the issue with her one bit.” That email was forwarded to Kagan. Her response is telling. Less than two minutes later, she replied, “This needs to be coordinated.” She also directed part of her response towards Ms. Schmaler. “Tracy, you should not say anything about this before talking to me.”

Thus, the obvious question arises: if Justice Kagan had no involvement with the case, what needed to be “coordinated”?

There is also an email sent by Mr. Katyal to Deputy Attorney General Tom Perelli on March 18, 2010. It states, “In light of this, for what it is worth, my advice (I haven’t discussed this with Elena, but am cc'ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go.” This reveals that Kagan had received “privileged information,” which also demonstrates a sufficient level of personal involvement to trigger the aforementioned statute.

Three days later, yet another email exchange between Ms. Kagan and Harvard law professor Laurence Tribe, who was then working at the Department of Justice, further reveals that Kagan’s enthusiasm for the healthcare bill belies her purported impartially. Once again, the subject heading is telling: “Re: fingers and toes crossed today!” The critical parts of exchange begins with Tribe. “So the healthcare bill is basically done. Remarkable! And with the Stupak groups accepting the magic of what amounts to a signing statement on steroids." Kagan’s response to Tribe? "I hear they have the votes, Larry!! Simply amazing.” The two exclamation points used by Kagan may indicate a number of things. Yet it strains credulity to believe that impartially is one of them.

Justice Kagan is well-versed on the recusal process, having removed herself from 29 of the 82 cases the Supreme Court has decided during her first term, due to her work as Solicitor General. She has also recused herself from 69 certiorari, or cert-stage cases (when the Court is deciding whether or not to hear a case) so far this term. Based on the evidence presented here, reasonable people can conclude that Justice Kagan’s impartially with respect to the PPACA is questionable at best.

She should recuse herself from the case.