04/25/2011 12:19 pm ET Updated Jun 25, 2011

With Kagan on Board, Supreme Court Turns Back Health Care Challenge

On Monday, the justices of the U.S. Supreme Court declined to rule on the constitutionality of President Obama's landmark health-care law. Opponents of the law, who have sued to prevent the law from taking effect, sought to fast track their appeal. Yet while opponents didn't really expect the Supreme Court to take the case now, they can't help but be disappointed by one key fact: Justice Elena Kagan did not recuse herself from the decision.

The standard for gaining expedited review by the Supreme Court is very difficult to meet. Under Supreme Court rules, an expedited review will only be granted "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice" -- namely, waiting until after the intermediate courts of appeals have had the opportunity to rule on the question. In the health-care litigation, there have been numerous decisions by trial courts, but none yet by the courts of appeals.

While obviously the lawsuits challenging the Affordable Care Act -- in particular, its requirement that nearly all Americans have health insurance -- are important, a Supreme Court decision is not "imperative" at this time. The so-called "individual mandate" does not even go into effect for a few more years, until 2014. Even if the Supreme Court waits until after the courts of appeals have had the chance to rule, there will be still be plenty of time for the justices to weigh in. The courts of appeals should issue their decisions in the next year or so.

The most significant news to come out of Monday's Supreme Court's decision was that Justice Kagan was apparently in on it. Health-care reform's opponents have been hoping that Kagan would recuse herself because she was solicitor general of the United States -- one of the federal government's chief lawyers -- when the law was being considered by Congress. Usually, a justice will refuse to rule on any case in which he or she has participated in previously. Indeed, Kagan conscientiously recused herself from a number of cases already this term.

Kagan's vote is crucial on the often-divided Court. It's widely expected that justices Sotomayor, Ginsburg, Breyer, and perhaps Kennedy will vote to uphold the law, while Justices Scalia, Alito, Thomas, and Chief Justice Roberts will vote to strike it down. Kagan's vote may well decide whether the mandate lives or dies.

Kagan, however, has been sending signals that she would not recuse herself from the health-care litigation ever since she was nominated. During her confirmation, she was asked, "Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation," including the ACA? "No," she replied.

The Obama administration has also come to Kagan's defense. It issued a statement that "former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation." Clearly, the administration wants to keep her in the game.

Going forward, we can expect health-care reform opponents to begin ratcheting up the public demands for Kagan to recuse herself from any future Supreme Court case on this. Don't be surprised if they even start calling for Kagan's impeachment. Having lost in Congress, they will try anything to bring President Obama's signature legislation down.

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