The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

Justice Kagan Receives the Latest Call for Recusal from Health Care Reform

Posted by judicialethicsforum on Sunday, May, 1, 2011

Supreme Court Justice Elena Kagan is the latest Justice to draw attention on whether she should recuse herself from ruling on the recent health care legislation.  The attention on Kagan follows repeated requests for Justice Thomas to recuse himself from the case, as well as the recent law professors’ letter to Congress and the proposed bill to impose recusal rules on the Supreme Court (Supreme Court Transparency and Disclosure Act).

Kagan drew attention after the Department of Justice released internal emails between DOJ officials discussing possible defenses to the Affordable Care Act.  The now Acting Solicitor General, Neal Katyal, forwarded an email regarding a white house meeting on the topic to then Solicitor General, Elena Kagan. 

Katyal’s email:

“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’s reply email:

“What’s your phone number?” 

Various websites have been speculating whether she actually discussed the health care legislation and did not want to create a written record. 

The Atlantic’s editorial can be read here.

The National Review’s article can be read here.

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