ACRU

Is Kagan Signaling Her Recusal on Obamacare?

This column by ACRU Senior Legal Analyst Ken Klukowski was published January 23, 2012 on The Washington Examiner website.

Justice Elena Kagan did not participate in the Supreme Court’s recent decision not to grant a motion from one of the participants in the upcoming consideration of the constitutionality of Obamacare.

In today’s weekly orders from the Court, one of the many amicus groups filing briefs in this case, Freedom Watch, filed a motion asking for permission to share part of the oral argument time when oral arguments are presented on March 26, 27, and 28. This motion was predictably denied, as it almost always is.

But then the following sentence was added at the end of the order: “Justice Kagan took no part in the consideration or decision of this motion.”

This is the language typically used when a justice recuses from a case. Kagan voted on the petitions for certiorari to take this case, as well as on the motion for a special briefing and argument schedule. And she voted just last week on the motion to add two new parties to the case.

But she did not vote on this motion, which could indicate she has opted to recuse from the Obamacare hearing.

There is another possibility. Freedom Watch’s amicus brief filed in the Obamacare case calls for Kagan’s recusal. That might have prompted her not to rule against them on a motion since someone could question her impartiality (and since she knew all the justices would vote against Freedom Watch anyway). Or there could be some conflict of interests with Freedom Watch or its lawyers.

So no one should assume Kagan is recused; she’ll probably hear this case. But today’s order is the first indication that recusal is a possibility.

If Kagan is recused, then there will be eight justices deciding this all-important case. A majority is still needed to win on any of the issues in the case, but a four-to-four tie would leave in place the Eleventh Circuit’s decision, striking down the individual mandate but keeping 99 percent of Obamacare intact.