Newly released documents reveal Supreme Court Justice Elena Kagan was more involved with President Obama’s health-care law than she disclosed previously. The documents likely will lead to a revival of questions about whether the Kagan should recuse herself from future cases.
Specifically, the documents show that Kagan was involved with crafting the legal defense of the Affordable Care Act in her role as solicitor general, before her appointment to the bench. The Media Research Center and Judicial Watch obtained the documents through a Freedom of Information Act (FOIA) lawsuit that was filed in February 2011.
In an email dated Jan. 8, 2010, then-Deputy Solicitor General Neal Katyal sent an email to Senior Counsel Brian Hauck and Deputy Attorney General Thomas Perrelli that indicates Kagan played a key role in coming up with a legal defense.
“Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues … we will bring Elena as needed.”
In an email on March 21, 2010, Katyal urged Kagan to attend a health-care litigation meeting on defending the law. “I think you should go, no?” wrote Katyal. “I will, regardless, but feel like this is litigation of singular importance.”
The documents also show that once Kagan was nominated to the Supreme Court, she and Katyal immediately switched course to distance her from discussions about the legislation.
