Should Supreme Court Justice Elena Kagan sit out the Obamacare lawsuit? Judicial Watch Inc. is claiming that she should. According to its May 18, 2011 announcement on its website, the self-proclaimed "conservative, non-partisan educational foundation" had obtained documents, pursuant to a Freedom of Information Act suit, casting doubt on Justice Kagan's impartiality.
Earlier in the year, they filed a claim to compel the DOJ to comply with the FOIA.
Judicial Watch claims that given her alleged involvement in crafting a defense for the legislation in her role as Solicitor General, Justice Kagan's impartiality might become more of an issue as the case proceeds.
Briefly, an overview of the trajectory of the "is Obamacare unconstitutional" legal battle:
Last month, the United States Supreme Court turned down the request for expedited review of the constitutionality of Obamacare, made by Virginia Attorney General Ken Cuccinelli. This should come as no surprise, as the case had not exhausted its avenues in the appellate courts.
Nevertheless, proponents of the "Obamacare is unconstitutional" argument are thinking one step ahead and now proposing that Supreme Court Justice Elena Kagan recuse herself from the case, if and when it reaches the Supreme Court. And now, with documents in their hand, their case might become stronger.
It is a given that U.S. Supreme Court Justices must appear impartial and remain impartial. In fact, according to FindLaw's Writ, Retired Justice Stevens seriously considered recusing himself from a case involving the University of Michigan Law School just because the outgoing Dean of the school had once been his clerk.
Several statutes also address the requirement of federal judges to disqualify themselves from a case in the event that their impartiality may be questioned.
With the current session of the Supreme Court coming to an end, chances are that the debate over Obamacare and Justice Kagan's recusal will continue into the summer.
Keep checking this blog for updates on this and on all things SCOTUS.
- U.S. Supreme Court (FindLaw)
- Memorandum of Justice Scalia re Recusal in Cheney Case (FindLaw)
- What's in Store for Elena Kagan? An Imagined Confirmation Hearing (FindLaw's Writ)
- Will Chief Justice Roberts Have to Recuse Himself? (FindLaw's Writ)