OSG Memo shows Justice Kagan 'significantly involved' in ObamaCare defense, still won't recuse herself

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In an article at the conservative Heritage Foundation’s “Foundry” blog, Hans von Spakovsky writes:

“An internal memorandum from the Office of the Solicitor General (OSG) reveals that Justice Elena Kagan “substantially participated” in a health care case in San Francisco in which the Justice Department argued over the effect of the Patient Protection and Affordable Care Act (PPACA). This raises grave new doubts about the appropriateness of Kagan’s participation as a justice in the Obamacare lawsuit scheduled to be heard by the Supreme Court in March… By May 2010, emails show that Kagan was well aware of the possible conflict, writing that the OSG’s message pertaining to her involvement in the matter ‘needs to be coordinated.'”

So, Justice Kagan not only “significantly participated” in the defense of ObamaCare, she was also very aware of the possible conflict of interest that could arise. Now that she’s on the Supreme Court, given her past involvement with this care and this topic, it seems clear that any Justice similarly involved should recuse themself from involvement in the case.

Justice Kagan is not recusing herself from the ObamaCare case, even though she knows her prior involvement represents a clear conflict of interest.

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