I just answered a reporter's question about whether Kagan is required to recuse herself in the health care matter:
Kagan's "Simply amazing!" comment, in response to Tribe's mentioning that there appeared to be sufficient votes for passage of the health care legislation, is not enough to justify disqualification. It could be read as simply a statement of fact -- it was amazing, regardless of one's approval of passage. However, even as an expression of approval of passage, the comment does not indicate that the Health Care Law is her work product, or that she had any substantive role at all in its formulation and passage. (Compare Breyer's role regarding the Sentencing Guidelines, which were his work product.)
If, in fact, Kagan participated in any litigation strategy sessions regarding the Act, however, she would clearly be disqualified under 455(b)(3) and 455 (a). But whether she did appears to be based only on surmise, and, as I understand it, has been expressly denied. Her denial would not in itself be enough to avoid disqualification (see Liljeberg), but just the fact that Katyal asked whether she shouldn't be at the strategy session, does not seem to be substantive enough to justify the inference that she actually attended the meeting. Indeed, in view of the importance of the litigation strategy session and her role as SG, the fact that he asked suggests that he had a reason to ask, e.g., that she was not on a list of participants.
On what we have at this point, therefore, I don't think Kagan is required to recuse herself.