In the midst of its disingenuous campaign to have Supreme Court Justice Elena Kagan disqualified from deciding whether the Affordable Care Act is constitutional, National Review Online accidentally undermined the case for having her disqualified.
A post on National Review Online's Bench Memos blog by Ed Whelan poses the following hypothetical:
Let's say that in January 2010 President Obama met with Solicitor General Kagan and told her (a) that she was a leading candidate for the next Supreme Court vacancy, (b) that it was important to him that any justice he appointed be able to take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge, and (c) that he was instructing her not to exercise her ordinary duties as Solicitor General on litigation involving his health-care legislation so that she would not be clearly disqualified (under 28 U.S.C. § 455(b)(3)) from taking part in deciding the litigation as a justice. Under these hypothetical facts, would Justice Kagan have to recuse herself under 28 U.S.C. § 455(a) because her "impartiality might reasonably be questioned"?
According to Kagan, this isn't what actually happened. Kagan has stated that she began scaling down her participation in general Department of Justice matters on March 5, 2010, not in January.
But let's imagine for a second that Whelan's hypothetical actually did happen, with one amendment: It's extremely unlikely that President Obama would have told Kagan that he wanted a justice he appointed to "take part in any Supreme Court challenge to his health-care legislation so that the justice could vote to reject the challenge." [emphasis added] But it would not be totally out of the realm of possibility for Obama to have said that he wanted to make sure a justice he appointed could take part in such a case to avoid a 4-4 tie.
And that would have been totally appropriate and not provided grounds for recusal, since in the amended hypothetical Obama would not have been saying how he expected Kagan to rule.
Indeed, it's very important that justices do what they can to avoid recusals in important cases, because of the possibility of 4-4 splits. Here is what Supreme Court Justice Samuel Alito had to say on the topic:
Supreme Court justices have less latitude to err on the side of recusal, because recusal can lead to decisions that are evenly divided or that involve less than an absolute majority of the Court. Lack of a definitive resolution to a case when the litigants have no higher court that could resolve their cases undermines the judicial process.
And the way the health care litigation has played out demonstrates just how important it was for Kagan not to trigger the recusal requirements in this case. A 4-4 tie would mean that the lower court decisions would stand. That, in turn, would mean that in the places where the lower courts have refused to strike down the Affordable Care Act -- the District of Columbia, the five Southeastern states that make up the U.S. Court of Appeals for the Fourth Circuit, and the four Midwestern states that make up the U.S. Court of Appeals for the Sixth Circuit -- the law would be in full force.
But in the states that make up the U.S. Court of Appeals for the Eleventh Circuit -- Florida, Georgia, and Alabama -- the individual mandate would not apply. What a mess that would be.
So, Whelan's hypothetical (changed a bit to make it not completely implausible) is actually an argument for why it was a good idea for Kagan to wall herself off from the health care case as she testified she did and why she should not recuse herself from the case now.