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.