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Kagan and the Obamacare Defense

A few months before the Supreme Court heard NFIB v. Sebelius (known as the Obamacare case), 49 Republican congressmen asked the House Judiciary Committee to investigate Justice Elena Kagan’s role in preparing a legal defense for the health care law when she was solicitor general.

U.S. solicitors general who get appointed to the Supreme Court have frequently recused themselves from cases that they worked on while a part of the administration – and the most junior justice recused herself from half of the first 50 cases that appeared on the court’s docket. In fact, Justice Kagan recused herself from a case at the cert. stage just last week.

“Determining the extent of Justice Kagan’s involvement is imperative for Americans to have confidence in the impartiality of the Supreme Court,” Rep. John Fleming said at the time.

But the decision to recuse was left up to Kagan and only Kagan, and she sat on the case. She’ll also be sitting on King v. Burwell, another Obamacare lawsuit, which will reach the high court this March.

When she was asked about a possible recusal should an Obamacare lawsuit reach her desk, she said she’d “weigh recusing herself from matters related to the health care law on a case-by-case basis.”

Fix the Court is calling on Chief Justice Roberts and his colleagues to formally adopt the code of ethics – called the Code of Conduct for United States Judges – that all other federal judges are required to follow. Should they demur, we believe Congress has the authority to compel the justices to adopt the code.

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