Justice Elena Kagan was the administration
Justice Elena Kagan was the administration's top government lawyer handling appeals to the Supreme Court.
PHOTO: Getty Images/file

Story highlights

Freedom Watch wants Kagan to recuse herself from health care reform cases

The high court denies the request without comment

Others have sought recusal by Justices Thomas and Scalia

The justices decide on their own when they need to sit out a case

(CNN) —  

The Supreme Court has turned aside a motion from a political advocacy group that sought to argue that Justice Elena Kagan should not participate in the upcoming blockbuster appeals over the constitutionality of health care reform.

The justices denied the request from Freedom Watch without comment Monday. Kagan herself did not get involved in this particular motion.

The court’s brief order all but assures that the newest justice will participate in the late March arguments and eventually rule on the cases’ merits. Similar calls for recusal from other groups have been directed at Justice Clarence Thomas.

Larry Klayman, head of Freedom Watch, wanted to argue the recusal issue himself as part of the three days of public oral arguments scheduled for March 26-28. There, lawyers for the Obama administration and a coalition of 26 states and private groups will separately plead their case on the health care law’s legal limits.

Klayman said that while the argument request was denied, he still thinks Kagan should pull out of the debate.

“The justices work for us, and the Supreme Court is the people’s court, not the justices’ court,” he said. “I hope that they will sober up and do the right thing and disqualify Justice Kagan from sitting on the Obamacare case, as she has a textbook conflict of interest given her involvement in the drafting of, and supporting, the legislation, while she was an official of the Obama administration at the Department of Justice.”

A loss of just one justice from ruling on an issue like health care would be huge, making a difference perhaps in the ultimate outcome. Activists from the left and right have made separate recusal requests, trying to manipulate the judicial playing field to each side’s advantage.

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“Obamacare” is the term used by the law’s opponents, since the president helped aggressively push for health care reform’s passage in Congress.

Kagan, 51, was the administration’s top government lawyer handling appeals to the Supreme Court. Her nomination by Obama in May 2010, and the weeks leading up to it, came at a time when Congress had passed – and the president signed – the Patient Protection and Affordable Care Act. The health care reform law would significantly change how Americans receive medical services and is the subject of six current appeals pending at the high court. Twenty-eight states and dozens of individual plaintiffs have opposed the law.

During her confirmation hearings to the high court, Kagan said she sat in “at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” The White House has long insisted that she was “walled off” from involvement in the internal health care law discussions.

After two conservative groups sued, the Justice Department turned over some documents related to Kagan. One e-mail from her to fellow government official Laurence Tribe talked about an upcoming House vote on health care: “I hear they have the votes, Larry!! Simply amazing.”

Another e-mail from her deputy at the time, Neal Katyal, indicated that Kagan asked her office “to be involved in this set of issues.”

Congressional Democrats have separately called on Thomas to pull out, citing his recent lapse in reporting the income of his wife for 13 straight years, as required by federal disclosure laws.

Virginia Thomas had worked for, and later founded, her own advocacy group, Liberty Central. Since she has openly opposed the health care bill, many liberals have said, and her political activities raise questions about Clarence Thomas’ own judicial independence and impartiality.

The justice said the information was “inadvertently omitted” from the disclosure forms, and his defenders note that his wife’s employment history for a variety of conservative causes was widely publicized.

“To believe that Justice Thomas didn’t know how to fill out a basic disclosure form is absurd,” said Rep. Louise Slaughter, D-New York, on behalf of 20 colleagues. “I cannot determine guilt or innocence, but I can request that the government do our due diligence in investigating a situation that strikes me, and many members of Congress, as suspicious.”

Slaughter separately has asked the Justice Department and judiciary’s administrative office to investigate.

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The high court has made no announcement on Thomas, but he has fully participated in the consideration of the health care appeals, and appears set to be involved in the arguments and subsequent rulings.

Thomas’ liberal colleagues – current Justice Stephen Breyer and retired Justice John Paul Stevens – have recently defended him, suggesting that he can hear the health care cases with impartiality.

Other groups also say Justice Antonin Scalia should step aside because he and Thomas have attended meetings and what those groups describe as fundraisers held by conservative legal groups.

Unlike other members of the federal judiciary, Supreme Court justices decide for themselves whether a conflict of interest exists, requiring disqualification.

The binding Code of Conduct of U.S. Judges requires recusal when “impartiality might reasonably be questioned,” including having a family member directly involved in the case or if there is a financial interest, such as a justice owning stock in company being sued.

In relation to Kagan’s case, the code also demands recusal if a judge, while serving in government, “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”

She has decided on her own to withdraw from considering at least 28 other cases the high court eventually accepted for review.

The court by tradition will not openly discuss when to recuse, and that is true with Thomas, Kagan and Scalia.

Chief Justice John Roberts said in his year-end report in late December that he had “complete confidence” in his Supreme Court colleagues to fairly decide whether to remove themselves from hot-button cases such as health care reform

“The Supreme Court does not sit in judgment of one its own members’ decision whether to recuse in the course of deciding a case,” he said of his benchmates, while not directly addressing the Kagan and Thomas recusal demands. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a vigorous appointment and confirmation process. I know that they each give careful consideration to any recusal questions that arise.”