The Consequences of Court-Side Cheerleading for Obamacare

As the Obamacare cases are now being deliberated by the Supreme Court of the United States, it is worth considering judicial ethics and proper public policy.

Associate Justice Elena Kagan refused to recuse herself from hearing the Obamacare cases, even though she was President Obama's first Solicitor General and her office formulated Obama Administration’s legal defense of the legislation. During her confirmation hearings before the Judiciary Committee, then Solicitor General Kagan swore that she abide by federal recusal standards (28 USC 455(b)(3)) which requires recusal when  a person has “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.”

Testimony during confirmation hearings suggested that Kagan was protected by an intellectual firewall which protected her from the case, as the DOJ anticipated Kagan's elevation to the High Court.  However, an e-mail exchange from  Kagan and Lawrence Tribe on the day the House passed Obamacare states  “I hear they have the votes, Larry!! Simply amazing,”.  Participants claim that this was not relevant hangs on the thin reed of the ambiguous title of the email “Re: fingers and toes crossed today!”

In February, Senator Jeff Sessions (R-AL) observed:  “Justice Kagan’s involvement in the preparation of the government’s defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal.”  Even liberal leaning George Washington Law Professor Jonathan Turley urged Kagan to recuse herself from hearing the case, but he extended the call for recusal to also include Associate Justice Clarence Thomas because of  Justice Thomas's wife, who involvement with Tea Party inspired activism.   But Chief Justice Roberts opined that the Supreme Court is not bound by the same ethical standards as lower courts.

It is curious as to what cases Justice Kagan recuses herself.  During her first term on the Highest Court in the land, Justice Kagan recused herself from 21 of 39 cases.  This term, Kagan readily absolved herself from hearing the Arizona SB 1070 Immigration Case, yet she obviously observed no compunctions against hearing the Obamacare cases.  It would be enlightening to understand what are  Kagan’s personal parameters for recusal.  Are they knowledge of details of the controversy, taking a side on a matter or how politically important is her vote?  Considering her juridical  leanings as well as history serving as the Solicitor General for the Obama Administration, it would not be surprising if she is just a SCOTUS Proxy for Presidential progressivism.

During the oral arguments on Obamacare, Kagan’s questions could be construed as more like cheerleading for Obamacare than an elevated appellate examination of the law.




But conduct during Supreme Court oral arguments is not always indicative of the Justice’s final vote.  Justice Thomas usually says nothing, but from his 1991 confirmation hearings and twenty years of opinions reveal an adherence to natural law.

In Liberty and Tyranny, Mark Levin notes that many who served on the nation’s High Court would not be considered legal luminaries.  And as 1987 Borking of Robert Bork showed, there is more to confirmation than being an outstanding legal intellect.

Since the Supreme Court refused to consider the merits of Kagan recusing herself from the Obamacare, the only Constitutional remedy is impeachment. But impeachment by the U.S. Senate is about as rare as rocking horse’s manure.  There might have been a campaign in the late 1950s and the 1960s to impeach Chief Justice Earl Warren, but the Senate has never conducted a trial of a Supreme Court Justice.  So it is inconceivable that trying to impeach Kagan for bad conduct would be successful.

What is warranted is taking Constitutional duties seriously.  First, there is the Advice and Consent of the Senate.  Kagan’s nomination to the Supreme Court was approved by Congress in the summer of 2010 by a 63-37 margin.  Granted, Democrats held 60 seats at the time, but this was going into a Teanami election cycle which was devastating to Democrats.   Republicans should have held then Socitor General Kagan’s feet to the fire, rather than demur questions that basically deferred to the party in power.  Moreover, Kagan’s nomination as well as other court nominations should have been a major campaign issue.   Secondly, the Executive Branch must exert its authority before enacting constitutionally questionable laws.  There is a famous instance that President George W. Bush signed the McCain-Feingold Act but he also issued a signing statement noting that he had serious constitutional concerns about limiting political advertising but that he would let the courts decide.  Thirdly, if the Supreme Court loses its authority as being an impartial admistrator of justice and more like a Judicial Super Legislature, we must learn to narrowly construe their rulings to corollary cases rather than as an expansive social vangard.

h/t: Eric Allie, Cagle Post