Health Care Reform Law: The Cases Against Elena Kagan and Clarence Thomas

Obama administration lawyers and attorneys for the 26 states challenging the health care reform law are ramping up the time table for the U.S. Supreme Court to decide the constitutionality of the Affordable Care Act.

As the court's decision to take these challenges nears, calls for Justices Elena Kagan and Clarence Thomas to recuse themselves from the case will likely get louder.

For Kagan, Republicans and conservatives argue that her time as President Barack Obama's solicitor general -- the White House's top Supreme Court and appellate lawyer -- poses a conflict of interest. They believe that she may have provided litigation strategy to beat back challenges to the health care reform law.

For Thomas, a staunch conservative justice, his Democratic critics target his wife Virginia's previously undisclosed income from anti-health care reform law groups such as the Heritage Foundation and the organization that she founded, Liberty Central.

Though recusal from cases does happen in the Supreme Court, each justice uses their own discretion, despite a statute detailing when federal judges should be disqualified from a case if impartiality might reasonably be questioned.

Reasons include former government lawyers who provided an opinion the merits of the case or a spouse is known to have an interest in the outcome.

Kagan in the White House

President Obama signed the Affordable Care Act on March 23, 2010. He nominated Kagan to replace retiring Justice John Paul Stevens on May 10, 2010.

The timing was not lost on Sen. Tom Coburn, R-Okla., who asked during a confirmation hearing if there was an instance as solicitor general where she was asked to give an opinion on the legal merits of the health care reform law.

There was not, she said.

The denial, however, did little to settle the issue. Through a Freedom of Information Act request from a conservative news site, e-mails from the U.S. Department of Justice showed that the Office of Solicitor General participated in a group to develop legal strategies to beat back court challenges.

Kagan in January 2010, assigned her top deputy, Neal Katyal, to be the office's point person.

Katyal writes in emails that he has not discussed the legal strategy with Kagan.

She has never been involved in any of it. I've run it for the office, and have never discussed the issues with her one bit, Katyal wrote in a May 2010 email, a sentiment he expressed in other emails.

In response to separate suits from two conservative groups, Judicial Watch and Media Research Center, the Justice Department released 45 of 86 relevant pages. The rest of the pages from Kagan, as solicitor general, were withheld because they were not agency records.

The two groups called the produced documents inadequate and pushed for more information. Specifically, the groups contended that Kagan had mentioned attending meetings where pertinent documentation about the health care reform law had to have been produced.

Plaintiffs' argument, that the topics within the FOIA request must have been discussed at these meetings and that records related to this must have exist, is simply conjecture, U.S. District Court Judge Ellen Segal Huvelle wrote in a decision in favor of the Justice Department.

The judge pointed to Kagan's written responses to questions from Republican senators over her level of involvement with the Affordable Care Act.

When asked if she was present at a meeting in which a lawsuit from the 26 Republican state attorneys general was discussed, Kagan said that she attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.

Huvelle said that Kagan's response just as easily disproves the conservative groups' accusation.

More documents about Kagan's role in the Affordable Care Act could be forthcoming.

In July, Rep. Lamar Smith of Texas, chair of the U.S. House Judiciary Committee, received a request from 49 of his Republican colleagues to hold an investigation into the matter.

While an inquiry or probe has not been launched, a committee aide told IBTimes Monday that the request was passed to the Justice Department, which is cooperating with the Judiciary Committee to provide relevant documents pertaining to the health care law and Kagan's time as solicitor general.

Thomas' Disclosures

Before Rep. Anthony Weiner's Twitter troubles abruptly ended his House career, he was the leading voice among Democratic elected officials raising concern about Thomas' alleged conflicts of interest and needling him to recuse himself from deciding on the health care reform law.

Other Democrats have since pressed the issue in Weiner's stead, as new disclosure issues surfaced.

Their efforts are based on reports from nonpartisan watchdog group Common Cause, which reported on the justice's failure to disclosure his wife's income.

In October, Common Cause said that records showed that Virginia Thomas made $1.6 million in undiscloused income from 1997 to 2008, mainly from the Heritage Foundation, a conservative think tank. Before 1997, the disclosures were reported, the group said.

It's hardly plausible - indeed it's close to unbelievable - that Justice Thomas did not understand the instructions, Common Cause's president Bob Edgar said in an Oct. 5 statement.

His group asked the Judicial Conference, an administration agency, to refer the issue to the Justice Department.

Now Democrats in Congress have been firing off their own requests for inquiries. Rep. Louise Slaughter of New York and 19 other members also asked the Judicial Conference to intervene. Another request was made Oct. 5 to the House Judiciary Committee to investigate and hold hearings.

In addition to her compensation from the Heritage Foundation, Thomas also founded in May 2010 an organization called Liberty Central, which states on its website that it shares the same goals as the Tea Party movement. She stepped down as its head last November.

One donor, real estate magnate Harlan Crow, made a $500,000 contribution to Virginia Thomas' conservative group, according to Politico.

Crow was the subject of a lengthy June report from The New York Times about his friendship with Thomas. The report focused on Thomas' request for Crow to help finance the creation of a museum.

The Times also reported that records suggested that Thomas used Crow's planes and yacht, though the justice never disclosed any travel reimbursements or gifts from Crow.

The travel issue was also referenced in the letter from Slaughter requesting a Justice Department investigation.

Ethical issues raised from Thomas' disclosure forms led more than 100 law professors to call for justices to be bound by the Code of Conduct for United States Judges.

The fundamental principle that 'no man may be a judge in his own case' was articulated by Lord Coke in the seventeenth century, yet inexplicably we still allow Supreme Court justices to be the sole judge of themselves on recusal issues, the March letter read.