The PJ Tatler

Should SCOTUS Justice Elena Kagan Recuse Herself from the ObamaCare Case?

Emails show that as solicitor general, she openly cheered passage of the bill.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

The Justice Department released a new batch of emails on Wednesday evening as its latest response to Freedom of Information Act requests filed by CNSNews.com and Judicial Watch. Both organizations filed federal lawsuits against DOJ after the department did not initially respond to the requests. CNSNews.com originally filed its FOIA request on May 25, 2010–before Elena Kagan’s June 2010 Supreme Court confirmation hearings.

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed–and which became the target of legal challenges–while Kagan was serving as Obama’s solicitor general and was responsible for defending his administration’s positions in court disputes.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

It seems that an opinion was expressed. With two exclamation points.