Nearly everything written about calls for Justice Kagan to recuse in NFIB v. Sebelius focused on whether she had anything to do with the Obamacare litigation while she was serving as Solicitor General. The answer to this question was straightforward. As I discussed in Unprecedented–and based on stuff I couldn’t write–she had absolutely nothing to do with the case. And this was no accident! At every juncture, she walled herself off as SG, so she would have no involvement with the Affordable Care Act.
But the most important question that no one asked her, is why did she have nothing to do with the most significant case of the Obama presidency.
You can go through the FOIA’d emails yourself for clues. Here are a few highlights.
As early as January 8, 2010, two months before the ACA cleared the House, and three months before Justice Stevens announced his retirement, Kagan, a front-runner for the next vacancy on the Supreme Court, was already sectioning herself off from what would become the most important case of the Roberts Court.
Brian Hauck, a senior counsel at the Justice Department, emailed Deputy Solicitor General Neal Katyal about putting together a team to defend the inevitable suits against Obamacare. Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena [Kagan] and designate someone.”
Katyal forwarded that message to his boss, Solicitor General Elena Kagan, and wrote, “I am happy to do this if you are ok with it . . . or both of us.” Three minutes later, Kagan replied with four words that would characterize her approach to ACA: “You should do it.” The future justice was already sectioning herself off from what would become the most important case of the Roberts Court. Neal Katyal wrote back to Hauck, “Elena would definitely like OSG [Office of the Solicitor General] to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, and we will bring Elena in as needed.” . . .