Should Kagan recuse herself from Obamacare cases?

Justice Elena Kagan recused herself in 28 of the 76 cases the Supreme Court heard during her first term in office based on her involvement in those cases as solicitor general. But one major recusal issue remains unresolved: whether similar involvement pre-nomination will require Kagan to recuse herself from the controversial cases challenging the constitutionality of the Patient Protection and Affordable Care Act, commonly known as Obamacare.

Court-watchers have been speculating about whether Kagan could sit as judge on the case since her nomination, and last week Representative Lamar Smith kicked the controversy up a notch. Responding to a letter signed by 49 other members of Congress, Smith officially requested documents and interviews to allow the House Judiciary Committee to explore Justice Elena Kagan’s involvement in strategizing for the passage or defense of the landmark health care law.

The Code of Judicial Conduct does not formally apply to Supreme Court justices. But the questions about Justice Kagan’s involvement with Obamacare are not based solely on that code; they rest on federal law that binds all federal judges, including those on the Supreme Court.

Subsection (b)(3) of 28 U.S.C. 455 explains that a former government lawyer must recuse himself as a judge: “Where … in such capacity [he] participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Kagan may have had this passage in mind when she stated during her nomination that she never was asked or offered her opinion about the health care legislation or litigation resulting from it. Under normal circumstances, it would be very strange for a solicitor general not to have expressed an opinion on a case of such high profile and that the administration was taking so seriously. And perhaps that explains why Rep. Smith and many other members of Congress seem very skeptical of her blanket denial. Their skepticism is reasonable in light of what has been disclosed since her confirmation. According to e-mails, she made the decision to get the solicitor general’s office involved in the defense of Obamacare as early as January 2010, months before the law was passed and well before she was told she was on the short list for a Court seat.

She also determined which office members would be in charge of the litigation, and the fact that she was solicitor general while the matter was under consideration in her office is sufficient to criminally bar her from taking on the case as a private attorney rather than a judge.

But even if Elena Kagan’s unqualified denial was accurate, it doesn’t go far enough to determine whether she should sit on the case.

Those evaluating Kagan’s involvement also must consider subsection (a) of 28 U.S.C. 455. That section provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

What would a reasonable observer think of one of the Obama administration’s top lawyers deciding the constitutionality of Obama’s signature legislation?

As Justice Scalia has noted, this test is not subjective but objective, and asks whether a reasonable observer “informed of all the surrounding facts and circumstances” would think a judge’s impartiality might be in question.

There’s just one problem: We don’t have enough information to make that analysis, and what we do know has been wrested from the administration only via time-consuming and expensive legal fights.