Dahlia Lithwick opines that, "calls for Elena Kagan to recuse herself from the Obamacare case are ridiculous." As I had noted in the previous post by Monroe Freedman, I don't believe that Justice Kagan's email provided grounds for recusal. But there is a second asserted ground, namely, that Justice Kagan allegedly participated on the matter while she was Solicitor General. The debate on that issue (which, in my view, Lithwick mostly sidesteps with strawman arguments) asks whether Kagan "served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy." (28 U.S.C. §455(b)(3))
People asserting that Kagan should recuse herself, including Ed Whelan and Carrie Severino at NRO, argue that despite Kagan's efforts not to participate on the Obamacare matter while she was Solicitor General, she did in fact participate because, "Kagan made the strategic decision to assign her deputy to the matter and that she was copied on substantive legal advice . . . ." That doesn't strike me as terribly convincing, because, as I understand it, the decision to assign the matter to the deputy was essentially her decision not to participate in the matter. (Can deciding not to participate be a form of participating? And if she's the top dog and decides not to participate, wouldn't she have to hand it off to someone to effectuate her non-participation?) And while the fact that she was copied on documents could be probative of actual participation, can being cc'd really be participation in and of itself? Your thoughts in the comments are welcome. (Here's a white paper by Severino arguing that Justice Kagan needs to recuse herself.) I suppose that we may learn more facts about Kagan's participation vel non in the matter, but I'm not seeing it yet. Your mileage may vary.
[UPDATE: Ed Whelen offers a thought experiment about the effects of Kagan having been "walled off." Suppose we concluded that the reason that Kagan chose this particular matter for "non-participation" was because of the importance of the statute to President Obama. Would that be grounds for recusal? Related questions: how many cases did Kagan pointedly "not participate" in? If this is the only one would that support an inference that she wasn't neutral? Why did she decide not to participate in this matter?]
The recent complaints about Justices Thomas and Scalia focus on their attendance at a Federalist Society dinner. I've often commented here that if the justices want to mingle, they should mingle with groups across the political spectrum. For an argument about why the recent dinner is not a breach of judicial ethics, see Jonathan Adler's piece at NRO. Interestingly, he notes that supporters of the healthcare statute were sponsors of and attendees at the dinner. Have those justices ever appeared at an ACS event? I think that they should.