This Day in Liberal Judicial Activism—January 8

by Ed Whelan

2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”

But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.

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