Supreme Court Chief Justice John Roberts’ “yes” vote on Obamacare came as a complete shock to most court observers. And perennial swing voter Justice Kennedy’s spirited opposition to Obamacare raised more than a few eyebrows. But Justice Elena Kagan provided no surprises when she voted in favor of keeping the president’s socialist takeover of our nation’s healthcare.
I say it’s no surprise, because, as you may recall, Judicial Watch uncovered evidence which suggests that, during Justice Kagan’s tenure as Solicitor General, the Office of the Solicitor General had been more involved in the legal defense of Obamacare than had previously been disclosed. We also uncovered evidence that she enthusiastically supported the passage of Obamacare.
Consider this email from then-Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, suggesting that Kagan wanted her office to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
And then there was this March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe commenting excitedly on the passage of Obamacare: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
You can see how one might fairly conclude that Justice Kagan not only helped craft the defense of Obamacare, but also supported its passage.
(These are just two of many illuminating emails we uncovered. You can read more here and here.)
Predictably, as a result of Judicial Watch’s investigation and the details we uncovered, many people called for Justice Kagan to recuse herself from the Obamacare lawsuit.
The key question, of course, was whether Justice Kagan could dispassionately evaluate the constitutional arguments at issue with Obamacare given that she herself may have helped craft the Obamacare defense. If a reasonable person can wonder, then it is most certainly cause for concern. After all, the recusal option is available for a reason – even the appearance of bias undermines public confidence in the integrity of the courts.
(Justice Kagan evidently recognized this fact when she recused herself from hearing the Supreme Court’s SB 1070 case, presumably because of her duties as Solicitor General when the government filed its lawsuit against Arizona. But why is the Arizona SB 1070 litigation different from that involving Obamacare? That’s what we’d like to know.)
As you know, JW has been aggressively forcing the release of all of the details of Justice Kagan’s involvement in Obamacare discussions. Much of what the country, and Congress, knows about this issue as a direct result of the work done by our outstanding investigations team.
We don’t know what the American people would conclude after reviewing all of the evidence, but we believe that the more information is available, the better. So we continue to fight for answers. As you might expect, the Obama administration has not been forthcoming. Neither has Justice Kagan. (I wrote to Justice Kagan in March on the eve of Supreme Court oral arguments over Obamacare asking her to disclose additional information and her reasons for participating in Obamacare. We have received no response.)
Attorney General Eric Holder has also chosen the cover up route, refusing to answer questions from the Senate Judiciary Committee on the matter in June, just before the Supreme Court issued its decision.
Per CNS News: “General Eric Holder has refused to provide written testimony to the Senate Judiciary Committee in response to ‘questions for the record’ submitted to him by Sen. Jeff Sessions (R.-Ala.) that focus on Supreme Court Justice Elena Kagan's involvement in the Patient Protection and Affordable Care Act--AKA Obamacare--while she was President Barack Obama's solicitor general.”
Here are a few of the questions DOJ refuses to answer, according to CNS News:
Question: “Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which information related to the Patient Protection and Affordable Care Act and/or litigation related thereto was relayed or provided to her?”
Question: “When did your staff begin ‘removing’ Solicitor General Kagan from meetings in this matter? On what basis did you take this action? In what other matters was such action taken?”
Question: “Did you ever have a conversation with Justice Kagan regarding her recusal from matters before the Supreme Court related to the Patient Protection and Affordable Care Act? If so, please describe the circumstances and substance of those conversations.”
And Holder’s Department of Justice (DOJ) is refusing to turn over key calendars of Kagan and her staff. As is typical, we had to sue to the DOJ to force compliance with the law. In the meantime, we have to wait for the court process to work as the scandalous stonewall continues.
The Supreme Court issued a highly controversial ruling affirming the constitutionality of Obamacare. Obama-appointed Justice Kagan provided a key vote saving Obamacare from constitutional oblivion. The DOJ, Justice Kagan and the Obama White House continue to stonewall the release of records and facts on the matter, while refusing to answer very basic questions posed by Congress.
What do they have to hide?
To say this obfuscation and secrecy undermines public confidence in the High Court’s decision is an understatement. There will be an ethical cloud over the Supreme Court until this matter is cleared up.