Elena Kagan's Supreme Court Recusal Games: Why Pulling Out Of Arizona Immigration Case, And Not Obamacare, Is All About The Potential Outcome

A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a ... counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”

It is clear that there is plenty of evidence that Elena Kagan deciding the Obamacare case is a violation of the federal statutes above. As but a few examples, it is known that Kagan while Solicitor General for the Obama administration wrote an e-mail to Harvard law professor Laurence Tribe in which she said, “I hear they have the votes [to pass Obamacare], Larry!! Simply amazing.” The email's subject line was "fingers and toes crossed today!" But even more than that, CNS news reported that "[i]nternal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as the DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to 'deem' the bill passed even if members never directly voted on it." It is beyond doubt that Kagan should in line with federal law not play any part in the Obamacare ruling. In fact, she may even have perjured herself as she had asserted during her confirmation hearing that she was not involved in the administration’s legal strategies for the law.

On the other hand, she did announce this week upon the Supreme Court's deciding to rule on Arizona's (as I have pointed out, constitutional) anti-illegal immigration law that she would play no role in that decision. Immediately, liberal Kagan supporters jumped at the opportunity to prove that Kagan was principled and clearly is willing to recuse herself even in highly controversial and hot button cases where the court is potentially going to be closely divided. The liberals at Think Progress argued along these lines specifically saying that people should now ignore demands that Kagan recuse herself in the ObamaCare case:

One thing today’s order should put to rest, however, is the ridiculous suggestion that Justice Kagan needs to recuse from the Affordable Care Act litigation. Since joining the Court, Justice Kagan has scrupulously avoided sitting on any case she worked on while Solicitor General — even though this took her off of dozens of cases. Today’s order shows that Kagan is no less attentive to her ethical obligations even when they arise in high profile cases that carry a great deal of political baggage for the president that appointed her.

Sounds compelling, does it not? The fact of the matter is that only a slightly deeper understanding of how the Supreme Court works and the members who make it up reveals that Kagan has gamed the recusal process, probably expecting the exact sorts of defenses coming from Think Progress for her refusal to recuse in the Obamacare decision.

These two cases are no doubt the most publicly noticed cases to reach the Supreme Court's docket since Kagan has assumed her position on the high bench. The question that needs to first be asked is what happens if the Supreme Court is in an even tie, based on a Kagan recusal, where 4 Justices vote one way and 4 another. Well, "[a]lthough rare, 4-4 ties are hardly unheard-of—justices do recuse themselves from time to time. A split decision effectively upholds the ruling of the lower court." The traditional practice of the Supreme Court of the United States is that "no affirmative action can be had in a cause where the judges are equally divided in opinion as to the judgment to be rendered or order to be made" (See Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 111 (1868)). There is therefore generally a rule of affirmance by an equally divided Court.

Once this is understood one need only look to the makeup of the court itself. Let us assume that in both cases there is a reliable 4 conservative Justices (Roberts, Alito, Scalia, Thomas) that will vote to strike down Obamacare and uphold Arizona's law. All that needs to be looked at is the lower court rulings. In the Arizona case, if unprincipled Supreme Court swing vote King Anthony Kennedy will move toward the liberal wing of the Court even without Kagan, that would make a 4-4 tie (Ginsburg, Breyer, Sotomayor, Kennedy vs. Roberts, Alito, Scalia, Thomas). This would result in Arizona's law being overturned as a result of the 9th Circuit Court of Appeals ruling declaring the law unconstitutional not being struck down. But now look to Obamacare, which reached the Supreme Court after a petition by the Department of Justice to review the 11th Circuit Court of Appeals decision declaring the law unconstitutional. If Kennedy swings toward finding Obamacare violative of the Constitution, even with Kagan recused, this would mean that the Court would have a 4-4 tie (again, Ginsburg, Breyer, Sotomayor, Kennedy vs. Roberts, Alito, Scalia, Thomas). Given that the lower appeals court had in this Obamacare case declared Obamacare unconstitutional, that would now be the legal ruling. And of course in either case, if Kennedy sides with the conservatives then Kagan's presence is moot since that would be a majority of 5 Justices rendering an opinion.

And so it should now be obvious to you that Kagan's recusal decisions have nothing to do with her integrity in following federal law as it relates to her duties as a jurist. It is a pure calculation as it relates to the potential outcomes without her presence. In fact, it is pretty clear that she is violating federal law in partaking in the Obamacare decision. And it is this apparent calculation, far more than the drivel from Think Progress, that is evidenced by a Supreme Court Justice unwilling to recuse herself despite mounting evidence that she should do so in the Obamacare case.

One has to be extremely gullible to believe that she had no involvement in the legal discussions and strategies regarding Obamacare, the current administration's signature piece of legislation, but yet had more involvement worthy of recusal in a lawsuit to oveturn the State of Arizona's law regarding illegal immigrants. That she has recused herself from one and not the other, proves nothing. Tweet