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Recuse Me Please! - Justice Kagan's Upcoming Delema

Tom Goldstein (see bio) an extremely well respected lawyer and Publisher for SCOTUSblog posted "An Update on Recusal" on Sunday, October 3rd, 2010.

The article was subtitled "A revised analysis of Justice Kagan’s recusals from OT10 merits cases"

The following are the last two paragraphs of the post:

The remaining recusals then would come from cases in which she approved some litigation decision in the lower courts while Solicitor General. That is very difficult to predict because we don’t know what cases the Court is going to hear, but my best bet is that it will be roughly three or four cases.

In the end, I estimate that Justice Kagan will recuse from twenty-eight of the approximately eighty-five cases the Court decides on the merits this Term –almost exactly one in three.

This information is pertinent because one of the cases referenced now happens to be Florida, et al. v. United States DHHS, et al. in which Justice Kagan was still in fact serving as Solicitor General.

Timeline of events:

• Solicitor General (3/19/2009-5/17/2010)
• Nomination to the Supreme Court (5/10/2010)
• The passage of the Affordable Care Act (3/23/2010)
• Filing of Florida, et al. v. United States DHHS, et al. (3/24/2010)

The SG is the senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked about a Constitutional challenge brought by so many states. The matter surely must have come up at Attorney General Eric Holder's senior staff meetings, which the SG typically attends. Kagan admits to being present during at least one meeting during which the litigation was discussed.

She made the following statement after her confirmation to the Court, “In Florida v. US Department of Health and Human Services [one of the health care lawsuits], I neither served as counsel of record nor played any substantial role,” she said. “Therefore, I would consider recusal on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”

I apologize for not being convinced that the SG didn't approve of litigation decisions or play any substantial role in this case. Initially three of the president's cabinet members and their respective departments were being sued over an act the president had just signed into law with known constitutional uncertainties. And the authority on constitutional cases brought against the United States was present in the meeting and had no substantial role?

This case will be brought before the Supreme Court.

Justice Kagan has set her own precedent for which she exercises recusal.

Many will (and in my opinion, should) view this an activist stunt if or when she decides to hear the case.