No, Justice Kagan shouldn't recuse

Althouse links to the latest story urging Kagan to recuse herself from the PaPACA litigation or explain why she won't.

Kagan shouldn't recuse herself (neither should Justice Thomas, by the way) and there's really no need to explain it. The prevailing understanding of recusal is needlessly histrionic; generally-speaking, I think that judges should recuse themselves when, and not unless, they have a direct personal stake in the outcome (stocks, etc.) or a personal involvement with a private litigant (the defendant is a family member; the plaintiff killed their dog). The idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is, in a word, fatuous. Writing for the court in Minnesota GOP v. White, Justice Scalia correctly said that

it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."

(Citations deleted.) If anyone believes that there is a single member of the court who doesn't have reasonably well-formed ideas about the Constitutional issues at issue in these cases, and at least tentative views about the application of those principles to these cases, they're living on another planet. And so what? Nobody in their right mind believes that Justices Scalia and Ginsburg must recuse from the next abortion case down the pike simply because they have strong moral views on abortion and settled legal views on the constitutionality of abortion, so what basis is there for demanding that Kagan recuse for potentially having views that are certainly no more settled and more than likely considerably less so?

The only conceivable basis is to argue that Kagan does have a direct stake insofar as she helped create the defense that she is now called to adjudicate. (For precisely that reason, Kagan has recused in a number of cases.) But did she? An email expressing excitement that the bill might pass is hardly a smoking gun, and I see little reason to believe that we're likely to find one. Here's why: The Senate consented to Justice Kagan's appointment on August 5th, 2010; the district court ruling striking down PaPACA, Florida v. DHHS, was argued in December 2010 and handed down in January 2011; the 11th circuit affirmed in August 2011. How could Kagan participate in briefing, arguing, or strategizing in litigation that took place months after she joined the court? It is conceivable that in the spring of 2010, Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation, but that just brings us back to the general legal views trap. I see little reason to believe that she participated in the earliest stages of the earliest actual litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

The calls for Kagan to recuse have nothing to do with judicial integrity, any more than do the left's recurrent calls for Scalia and Thomas to recuse from various cases. (I recall one article in which a professor seriously argued that five justices should have recused in Bush v. Gore, and what do you know, they just happened to be the five who voted for what the professor thought was the wrong result! Fancy that!) This is about stacking the deck. The left wants Thomas out to eliminate a vote against Obamacare and the right wants Kagan out to eliminate a vote for it. The court should decline the invitation to dignify such naked partisanship by responding any more than it already has.