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Elena Kagan Recusal: Supreme Court Won't Hear Arguments For Justice To Step Down From Health Care Cases

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ELENA KAGAN SUPREME COURT
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WASHINGTON -- The Supreme Court on Monday morning denied a conservative watchdog group's request to argue for Justice Elena Kagan's recusal from the health care cases slated for oral argument in late March.

In early January, Freedom Watch submitted a strongly-worded brief to the Court urging the justices to force Kagan off the case because she expressed support for the law in several emails while she served as solicitor general.

Liberal groups have likewise called for Justice Clarence Thomas' recusal from the cases because of his wife's participation in Tea Party-affiliated organizations that advocate against the Affordable Care Act. None, however, have taken Freedom Watch's step of directly petitioning the justices.

Kagan did not take part in the Court's consideration of Freedom Watch's motion. It is standard practice for a justice to stand aside whenever recusal motions toward -- or lawsuits against -- that justice come before the Court. Her recusal from this motion, however, does not indicate whether she will ultimately recuse herself from the cases themselves, nor does the Court's denial of Freedom Watch's request mean that Kagan -- or Thomas, for his part -- will ultimately sit on the case.

Still, it remains unlikely that she will recuse herself given her participation in every other Affordable Care Act-related motion that has come to the Court from the moment its litigants first asked the justices to take up the cases.

It is unclear how Freedom Watch's motion would have taken shape. The Court will already be hearing five and a half hours of arguments on health care issues over the course of three days at the end of March. Neither Kagan nor Thomas has shown any indication that they will recuse themselves from those arguments. Freedom Watch's brief did not ask for a separate session in advance of those arguments to clarify the two justices' contested status, nor did it explicitly urge the Court to squeeze Freedom Watch into -- or add another hour on top of -- the already extraordinary amount of time dedicated to the cases.

Nevertheless, one can surmise from the language Freedom Watch chose to employ in its brief that the organization was more interested in making a public statement than winning the sympathy of the justices.

"Today, the Supreme Court and the other two branches of government have assumed the role of a 'royalty' - in some ways worse than even King George III - who feel free to ignore the legitimate interests and grievances of 'We the People, because they believe they are a "protected class" and above the law," the brief contended.

Freedom Watch reserved its strongest words not for Kagan, but rather for Chief Justice John Roberts. A week before the organization filed its brief, Roberts dedicated his annual report on the state of the judiciary to defending the integrity of his colleagues and the Court's internal recusal process.

"The comments of Chief Justice Roberts are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws," the brief said. "They are the result of someone who became Chief Justice by first ingratiating himself to the 'Washington establishment,' and now seeks to act as the Chief Justice not just of the Court, but of this same establishment - which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out 'We the People.'"

At an oral argument earlier this term, the justices sat stonefaced before a lawyer who dared make a small joke at the expense of Justice Scalia's voting pattern. All other considerations aside, then, it is not surprising that the justices would be unreceptive to ad hominem attacks against their chief who so recently defended their honor.

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