Now that the Supreme Court has agreed to decide whether a provision of the Affordable Care Act is constitutional, the conservative media are trying a new tack in their never-ending quest to have Justice Elena Kagan disqualified from hearing the case. Fox and the Drudge Report have pointed to an email Kagan sent to then-Justice Department adviser Laurence Tribe on the day the House of Representatives passed the Affordable Care Act in which Kagan said, "I hear they have the votes, Larry!! Simply amazing."
But experts on judicial ethics say that the email Kagan sent is not grounds for recusal from the case.
Matt Drudge touted the email with the headline "Judge Not: Kagan Cheered Obamacare Passage."
Fox Nation posted the headline "Recusal? Kagan Cheered Obamacare Passage."
Not to be outdone, Megyn Kelly, supposedly part of Fox News' "straight news" division, claimed that Kagan "did seem to back the law" and quoted the email. However, not even Kelly's guest, Florida Attorney General Pam Bondi -- one of the lawyers challenging the Affordable Care Act -- bought the argument that Kagan should obviously recuse herself.
Bondi said: "[Y]ou and I know that ultimately it's up to Justice Kagan whether she chooses to recuse herself. So she is part of the highest court in the land, and we believe that all the justices will do the right thing. And if they feel they can be objective and hear this case, then they should do so."
And Bondi is far from the only one who is skeptical of the argument that Kagan must recuse herself because of the email.
Tribe, the recipient of the email in question and a Harvard Law School professor, told CNSNews: "I do not have any reason to believe that any of the provisions of 28 USC 455 [the statute governing recusal of Supreme Court justices] require Justice Elena Kagan to recuse herself from cases involving the Patient Protection and Affordable Care Act."
Monroe H. Freedman, a Hofstra University professor of law and an expert on legal ethics, wrote on the Legal Ethics Forum blog:
Kagan's "Simply amazing!" comment, in response to Tribe's mentioning that there appeared to be sufficient votes for passage of the health care legislation, is not enough to justify disqualification. It could be read as simply a statement of fact -- it was amazing, regardless of one's approval of passage. However, even as an expression of approval of passage, the comment does not indicate that the Health Care Law is her work product, or that she had any substantive role at all in its formulation and passage.
Freedman also stated:
If, in fact, Kagan participated in any litigation strategy sessions regarding the Act, however, she would clearly be disqualified under 455(b)(3) and 455 (a). But whether she did appears to be based only on surmise, and, as I understand it, has been expressly denied. Her denial would not in itself be enough to avoid disqualification (see Liljeberg), but just the fact that Katyal asked whether she shouldn't be at the strategy session, does not seem to be substantive enough to justify the inference that she actually attended the meeting. Indeed, in view of the importance of the litigation strategy session and her role as SG, the fact that he asked suggests that he had a reason to ask, e.g., that she was not on a list of participants.
On what we have at this point, therefore, I don't think Kagan is required to recuse herself.
John Steele, co-founder of the Legal Ethics Forum and a legal ethics expert, said the following in a comment on Freedman's post:
Monroe, agreed. There have been hints that she worked more actively on the matter but those haven't panned out yet. This "revelation" is a big yawn to me. It would be a shame if judicial ethics became infected by ordinary partisan politics -- whether from the right or the left.
And NYU law professor Stephen Gillers said in an email to Media Matters:
On the "simply amazing" quote: I do not believe that by itself it can require recusal under 455(a). I say "by itself" because a 455(a) analysis is often a product of multiple indicia alleged to support the inference that impartiality might reasonably be questioned. Sometimes, a single statement or act can support 455(a) recusal, as when Justice Scalia commented on the merits of the "Under God" case while it was pending argument. But often it's an accumulation of items.
Further, "Simply amazing" is susceptible to competing interpretations. For example, if a conservative justice had said it, those who support the law might well interpret it as evidence that the justice was amazed that Congress had the temerity to pass an obviously unconstitutional law. So the interpretation would sound like this: "Simply amazing that they can believe this is within federal power." When a purportedly liberal justice says it, however, the conservatives can choose to read it as meaning: "What a wonderful and salutary achievement for social welfare and the nation."
And there's a third reading. As a matter of actual fact, it was "simply amazing" that the United States Congress adopted a comprehensive health care law, regardless of its constitutionality. The fact of passage is simply amazing after so many decades of effort to address this social problem. Acknowledging the truth of that fact says nothing about partiality.