Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.
So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.
First the law: A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a ... counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”
As many have pointed out, there are legitimate arguments that these rules point to recusal. Was Kagan a “counsel” or “adviser” on this issue? We know that she was on an e-mail exchange between her top deputy, Neal Katyal, and Associate Attorney General Tom Perrelli, about a meeting to discuss the litigation strategy for the ACA litigation, and lawyers in her office would be present. We also know she attended at least one meeting where the litigation was discussed. It is of course possible that she personally stayed out of those discussions. We don’t know how fully Kagan was involved because the White House (perhaps for legitimate reasons unrelated to this controversy) has not released all of the relevant emails about the matter. We might never know, but that lack of certainty points to recusal, because it raises serious doubts.
We also know that Kagan wrote an e-mail to Laurence Tribe, a famous Harvard constitutional law professor who was also working for the administration at the time the law passed, in which she said, “I hear they have the votes, Larry!! Simply amazing.” The email's subject line was "fingers and toes crossed today!"
Would these two constitutional law giants celebrate the passing of a law they believed violated the Constitution? Professor Tribe has since given many public statements that he believes the lawis fully constitutional. Certainly, had she written to him, “Larry, this constitutional law finally passed,” she would have had to recuse. The issue becomes whether this email consists of an expression of opinion “concerning the merits of the particular case in controversy.” That’s a harder question.
A few years ago, Justice Scalia recused himself from a case challenging the constitutionality of the “under God” provision of the Pledge of Allegiance because he made a few for offhand comments about the case during a speech. Most liberals approved of Scalia’s decision at the time. The case for Kagan’s recusal, while different, seems even stronger to me. Scalia recused himself because he preliminarily aligned himself with a view of the case while it was pending. But Kagan was politically aligned with the president who is identified with the law at issue. She was aligned with him when the law was passed, and that president—and his administration’s—future may be severely impacted by the court’s ruling on the ACA. Scalia’s problem in the Pledge case was limited to what he said. Kagan’s problem with the ACA lies in what she did.
I am not arguing that Supreme Court justices should recuse themselves any time they are called upon to hear a case involving a law supported by the president for whom they once worked. But this situation is far more complicated than that. This isn’t just about parsing the words of the recusal statute for plausible defenses; it’s about the appearance that a Supreme Court Justice with a conflict of interest is sitting on a major case. This is the perfect storm of events that should require Kagan’s recusal. Take away any one of these facts and perhaps the recusal issue would change.
1) She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted;
2) The ACA is the most important, controversial, and partisan piece of legislation put forward by the Obama administration while Kagan worked as the president’s top lawyer to the Supreme Court. If he didn’t consult with her about it, he should have;
3) She was nominated to the Supreme Court by President Obama shortly after the ACA was passed, and the president is closely and personally identified with the law;
4) She has to review the law just a few months before President Obama runs for re-election;
5) His re-election might well be affected by how the Supreme Court rules; and
6) We know she celebrated the passage of the law.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
For those worried about the precedent Kagan would set by recusing herself take solace in the fact that it is unlikely that these facts will repeat themselves again. The problem is not that she is reviewing a law passed by the president who appointed her and for whom she worked. The problem is that this specific law is the focal point of the Republican opposition to his re-election campaign, which will take place just a few months after the decision is expected.
Opponents of my argument for Kagan’s recusal might contend that other justices, like Jackson, Warren, Blackmun, and Souter greatly disappointed the presidents who appointed them on important issues of national defense, civil rights, and abortion, and Kagan could possibly do the same on the validity of the ACA. But none of those justices worked for the appointing president during the same term the president's signal piece of legislation was passed, and shortly before the president was running for re-election. Back in the days after the Civil War, President Grant openly stacked the court to reverse an important decision he did not like invalidating Congress’ authority to issue paper money. But that law was passed long before Grant was elected president and, in any event, that incident caused great damage to the public perception of the court.
And, that, it seems to me, is the bottom line. The Supreme Court is increasingly seen as a partisan political institution making political decisions instead of a true court deciding cases under the law. Justice Kagan has a golden moment to display that at least one Supreme Court justice has integrity and character that exceed her party loyalty and political past. If she sees herself as a political official who, because of the office she occupies, gets to cast an important vote on an issue that may decide an election, she should stay on the case. But, if she views herself as a judge of law who is obligated to approach legal issues objectively and open-mindedly without regard to partisan political outcomes, she ought to step aside. Nothing less than the integrity of the Supreme Court is at stake.
Now, as to Justice Thomas …
Correction, Dec.8, 2011: The article originally misspelled President Barack Obama's first name.