• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Obamacare, the Supreme Court, and Recusal

    Yesterday, the Supreme Court denied Virginia’s motion to bypass the appellate court and go directly to the Supreme Court in its challenge to the Obamacare litigation.

    The Court’s decision not to hear the case, delivered in an order without comment, was not surprising. While the procedure exists for the Court to hear cases after a decision of the district court but before a decision of the court of appeals, it almost never does. And when I say “almost never does,” let me be clear: Playing the lottery probably has better odds.

    It is black-letter law that the Supreme Court’s discretionary decision refusing to hear a case has no precedential value. All that the order signals for certain is that there were not four votes to hear the case right now. We can, however, surmise that the Court wanted to follow the ordinary course and to have the advantage of the decisions of the court(s) of appeal before they all but inevitably take the case.

    The Supreme Court will not have to wait long. The Fourth Circuit Court of Appeals has taken Virginia’s case on an expedited calendar and is holding oral arguments on May 10, while the Eleventh Circuit is hearing oral arguments on an expedited basis on June 8 in a challenge brought by a majority of the states and the National Federation of Independent Business. Both of these courts are likely to issue their opinions by early fall, which would permit the Supreme Court to hear the case and issue a ruling as soon as June 2012.

    What is interesting about the order is that it appears that Justice Elena Kagan took part in the vote—there is no mention that she recused herself—which suggests that, unless she changes her position, she is likely to participate in the cases challenging Obamacare, including the Supreme Court’s ultimate review of the matter. This despite growing concerns about how much involvement Kagan may have had in early deliberations about the legislation and then potential litigation while she was Solicitor General—and whether this involvement merits recusal.

    In assessing the issue of recusal, Professor Richard Epstein argues:

    The claim here is far from frivolous. It is not as though people thought that no constitutional challenge would be lodged against the statute. And it seems highly unlikely that the chief appellate lawyer of the United States would not weigh in on a statute that is likely to make it to the Supreme Court. Were this an ordinary case, I have no doubt that Kagan would bow out. But with the stakes so high, and the political terrain so uncertain, one can only wonder.

    Why is it far from frivolous? Because the statute governing judicial recusal states that a judge or justice “shall” disqualify herself in the following circumstances: “Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy[.]” 28 U.S.C. § 455(b)(3) (emphasis added).

    Recent e-mails from Kagan’s days at the Department of Justice obtained under the Freedom of Information Act raise more questions than they answer about her possible participation in early deliberations.

    For example, on March 21, 2010, Neal Katyal, then her deputy, forwarded an e-mail to Kagan about a meeting that Associate Attorney General Tom Perrelli was organizing at the White House to discuss strategies to counter lawsuits challenging Obamacare. Katyal wrote:

    This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.

    Kagan responded moments later:

    What’s your phone number?

    Adam Liptak of The New York Times cites this exchange yesterday in support of his conclusion that the documents obtained “appear to confirm that [Kagan] took pains to avoid involvement in meetings concerning challenges to the health case [sic] law.” It is difficult to respond to Liptak’s “took pains to avoid involvement” conclusion other than to say that the facts he cites do not support his conclusion. Rather, it is clear from the quoted exchange that Kagan was shifting the conversation off of e-mail—the obvious reason to do so being to avoid a discoverable paper trail. Beyond that, we don’t know anything, because she did actually take pains to assure that the content of the conversation was not available for subsequent review.

    Posted in Obamacare [slideshow_deploy]

    13 Responses to Obamacare, the Supreme Court, and Recusal

    1. Rondo, Texarkana, AR says:

      I find it very disturbing that the highest court holds the future of America in its hands in such a cavalier manner. The longer this abomination continues to fester, the more likely that the damage will be irreparable. Now, the bill's future will not be decided until summer 2012, far too late to prevent catastrophic damage.

    2. HawkWatcher, Mi. says:

      This should be a no-brainer for the black-robed geniuses.

      Even commoners like myself know which specific and limited powers we allow the feds to have; the Constitution enumerates them in a way that we can pretty much understand. Mandating that Americans buy insurance is definitely not a federal power. The very concept should have failed to get to the floor on the basis of liberty lost, let alone be incorporated into a 2700 page federal power grab.

      We commoners also know our specific rights; and health insurance, collective bargaining, and retirement packages are not among them. Too many confuse rights with priveleges, and the statism grows like a weed, fertilized by expensive "rights" created out of thin air by lying politicians.

      When a state or states have a case with the feds, doesn't the SCOTUS have original jurisdiction? (Art.III, Sec.2) Why does this languish in the lower courts? Unless I'm reading this wrong, the SCOTUS is wimping out.

      Why do we constantly allow law to be passed, funded, and implemented when we know it is destined for the courts? This must stop. I have about zero respect for all three branches of government these days. Cynical T.E.A.

    3. Kyle, MD says:

      Another BO puppet!

    4. West Texan says:

      Obamacare presents a constitutional crisis. To allow this challenge to go through the usual channels is headed for a costly and unnecessary fight. Personally, I find SCOTUS' decision lacking.

    5. Lloyd Scallan (New O says:

      "Adam Liptak of the New York times"! That all that has to be said. Liptak would not be writting at the NYT if he was not an Obama lackey. When, in modern

      times, has NYT printed unbiased truth?

      To suggest that Kagan will recuse herself on this matter is wishing for the moon.

      One important reason Obama was determined to have her confirmed to the Court was precisely because he knew this exact scenario was in the wings.

    6. Pingback: Heritage Budget Chart Book Shows Pictures of a Budgetary Disaster | The Foundry

    7. Wildcat from Dallast says:

      While it may have been great to have the Supreme Court hear the case now, they should be in a much better position to deal the death blow when it is even more critical. Nothing like having that albatross dealt to the Democrats during the final portion of that most important general election. It doesn’t matter to me whether it is Obama or whomever they can field as well as the remaining Democrats trying to hold onto their seat of power, a defeat of their so-called crown jewel of socialism would take the wind out of their sails and energize the Republican base during the most critical part of the campaign process.

      Kagan should have recused herself from that case and should definitely when it finally gets to the Supreme Court as she has the strong appearance of having been involved in the preparation of the defense for the government when she was the solicitor general.

    8. LD says:

      Wasting time with Obama and Kagan both. Forward flight. Remove from office to end circumvention of the Bill of Rights and collapse of US domestic and economic infrastructures, or live with the consequences. The end game for these monsters is transformation of US government to a charter of the UK, and they are getting away with it while you folks stage petty discussions regarding the merits of their work.

    9. HawkWatcher, Mi. says:

      And what should "us folks" do, genius LD? Until conservatives have majorities in the House and Senate, not much can be done there, as we have seen. Until a conservative occupies the White House, the assault on America will continue, as we see.

      Allow me to dangle a participle or two. Characterizing our speaking on the loss of liberty and a horrible law that affects us all negatively as a petty discussion? Get outta here!

    10. West Texan says:

      To LD,

      HF consolidates conservative thought and opinion into a unified voice. They are a credible communicative force inside the nation's capital. Nothing is being staged here. Do I personally agree with everything HF puts out? Not always. But I do respect their hard work and integrity. Think tanks like HF are necessary given today's political reality.

    11. michael j mudrak car says:

      W e know justice kagan has no love for the second amendment also she denied

      in her hearings that she didnt allow the military on the campus that she was in

      charge of.She also stated she knew nothing of natural law.

      • Gary says:

        She knows nothing of peoples rights or individual liberty. She believes in tyrany. Plain and simple.

    12. Gary says:

      Let's be clear. There are 4 judges in my opinion who will support Obamacare as being constitutional. they will support it on ideological terms only. These four have not a clue as to what the constitution says, let alone support anything in the constitution. There are 4 judges whom I call constitutionalists and would strike down this unconstitutional mandate from the administration. This leaves one judge who will either vote correctly against Obamacare or give in to this President. I am still appaled at the weak democrats who could have voted no, yet let the Reids and Pelosis put pressure on them to vote for it. The likes of Lieberman and Bayh who one would think would follow the constitution, voted for it. The senators and congressman who voted for it are the real culprits. Stupak and his band of 8 who held out because of payed abortion also caved and made a deal with the devil through an executive order. These people are disgusting people and did not live up to their oath of office. How convenient that they chose to leave politics. The people in their town should remind them everyday how wrong they were to subject this nation to a socialism.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.

    ×