Today, the U.S. Supreme Court agreed to hear the so-called “26-state lawsuit” against the Patient Protection and Affordable Care Act, better known as Obamacare. This announcement ends speculation whether recent Obama appointee Justice Elena Kagan will recuse herself from the case.
It is clear that Justice Kagan has refused requests that she not participate in this ruling. The failure of the Court order to note that Kagan had recused herself indicates that she has not. Traditionally, when a justice decides not to participate in a decision to hear a case,the Court order notes that fact. No notification means that it can be assumed that each justice participated in the decision, including Kagan.
The calls for Justice Kagan to recuse herself are based upon her role as Obama’s Solicitor General when Obamacare was passed. In this position, she must have been involved in the strategy decisions on how to defend Obamacare. In fact, and by her own admission, she “was present at ‘at least one’ meeting in which the challenges to PPACA were discussed.”
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