Accusations about both justices, from the left and the right, show no signs of dissipating now that the Supreme Court has said it will review the constitutionality of Obama’s signature domestic achievement, the Patient Protection and Affordable Care Act of 2010.
A judicial ethics expert will be live chatting with readers about this topic at 1 p.m. ET. Submit your questions and opinions now.
Justices decide for themselves whether they have a conflict serious enough to warrant recusal from a specific case, and neither Kagan nor Thomas appears to be considering sitting out the biggest case of the term.
Federal law requires judges, including those on the Supreme Court, to disqualify themselves when their “impartiality might be reasonably questioned,” as well as for specific reasons such as a financial interest or the involvement of a family member in the litigation.
In addition, it calls for recusal when the judge has served in the government and “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”
The charges against Kagan arise from her work as solicitor general, the government’s top appellate lawyer. If she were still in the job, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional.
Kagan was notified by the White House in March 2010 — just before the law was passed — that she was under consideration to be named to the high court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come.
“I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred,” Kagan said in a written response to questions from Republicans on the Senate Judiciary Committee.
She said she had never been asked her opinion about the underlying constitutional and legal issues in the lawsuit or reviewed government documents filed in the case. Similarly, Attorney General Eric H. Holder Jr. said lawyers went out of their way to keep from involving Kagan in the discussions.
But congressional Republicans say e-mails released to conservative groups under public records requests raise questions about the White House’s contention she had been “walled off” from discussions about the health-care act. One e-mail from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved.