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A note on Kagan and health care

Justice Elena Kagan took herself out of a routine order the Supreme Court issued Monday in the health care case, but has not disqualified herself from participating in the argument and decision on those cases.  The order denied a plea for time during oral argument filed by a group, Freedom Watch, that has asked Kagan to remain out of the case altogether.  Freedom Watch requested her recusal in an amicus brief in the case; it then filed a motion to take part in the oral argument, and that is what has now been rejected in an order in which she did not participate, presumably because Freedom Watch had directly challenged her judicial independence.

In its amicus filing, Freedom Watch did not line up with either side in the controversy, limiting itself to a claim that Kagan’s prior role in the Obama Administration means that she “has demonstrated an extra-judicial bias and prejudice and must respectfully recuse herself or be disqualified.”   The issue of recusal is left to each Justice personally, and Justice Kagan has not refrained from taking part as the Court issued earlier orders in the case.  Moreover, Monday’s order was specific in saying that she had not taken part “in the consideration or decision of this motion” (emphasis added).

Recommended Citation: Lyle Denniston, A note on Kagan and health care, SCOTUSblog (Jan. 23, 2012, 10:40 AM),