By Robert Barnes
Washington Post Staff Writer
Tuesday, November 9, 2010; A03
The Supreme Court passed up its first chance to review Congress's overhaul of the health-care system on Monday, which was not a surprise. Lower courts are just beginning to hear challenges to the law, so a decision by the justices to step in now would be highly unusual.
More interesting is that there is no indication that Justice Elena Kagan sat out the decision on a challenge brought by a former California legislator. That could be an indication she sees no conflict in hearing cases involving health-care reform, despite her role in the Obama administration.
During her confirmation hearings, Kagan said that as President Obama's solicitor general, she had not been involved in legal strategy sessions about how to defend the health-care plan against charges that it is unconstitutional. She declined to say whether she would recuse herself if the issue reached the Supreme Court.
Kagan has recused herself from many cases that have come before the court this year, including three on the list of petitions that the court said on Monday it would not be granting.
But it appears from the court's one-sentence order that all of the justices were involved in deciding that Baldwin v. Sebelius was not ripe for the court's consideration.
In the case, a federal judge in California has ruled that, at this point, neither an individual nor a business has been harmed by the law's future mandate of insurance purchases, so no one could yet challenge the law. Federal judges in other parts of the country have ruled differently, but no appeals court has yet ruled on the question.