Justice Elena Kagan might have angered some conservatives when she chose not to recuse herself from Monday’s decision not to fast-track the high court’s review of Virginia’s challenge to the health care reform law. But it’s really not surprising she didn’t—or that some people are upset about it—political pundits say.
It’s all part of the bigger political game, says Adam Winkler, a professor of law at UCLA.
“This is not surprising that questions were raised about Justice Kagan’s participation in the case,” Winkler says. “This is a common political game, and both sides play it in the hopes of bringing some public pressure to some justices to recuse themselves.”
Conservatives have been calling for Justice Kagan to recuse herself from any health care bill decisions because she was President Obama’s solicitor general when the health care reform bill was passed. When Kagan was asked in her confirmation hearing if she had ever stated any opinion or had any involvement in the health care bill, she replied, ‘No,” Winkler explains.
After the Obama administration released files and e-mails to the public, there were no “smoking guns” that she had a biased opinion on the matter, he says.
“They should recuse themselves whenever there is a reasonable appearance of a conflict,” Winkler says. “But justices rarely recuse themselves unless there is very strong evidence that that they can’t be impartial.” Ultimately, it’s the judge’s own decision.
Still, though, “whenever there is a closely decided case, people are going to raise questions about impartiality.” In the past, liberals have raised questions about conflicts of interest for Justice Antonin Scalia and Justice Clarence Thomas.
Plus, health care reform is a touchy subject. “This is just one more battle with health care,” Winkler says.
The bigger issue of the decision is the court’s overall ruling, says Brian Robertson, EVP of Fringe Benefit Group.
“In determining to not fast-track the legislation, the Supreme Court is leaving the bill in the hands of Health and Human Services’ Sec. Kathleen Sebelius and the legislative branch. It is apparent that the legislators continue to wrestle with their decision of March 2010 to ‘Pass this law so that we can find out what is in it,’” Robertson says. “They are now picking off different pieces of the law in order to make it more palatable and I am confident we will continue to see more of this.”
The decision forces more of the act to be implemented. Simply put, it will be viewed positively by proponents of the law and negatively by its detractors, Robertson says.
But not fast tracking Virginia’s bill isn’t much of a surprise, either.
The court rarely takes up issues that haven’t received a full review in the nation’s appeals court.
“The concept is that the appeals court is set up to hear appeals and the high court waits for that process to complete,” says Jim Christenson, field vice president at Allstate. “The Virginia Attorney General obviously was aware of this fact and is grandstanding.”
So, who’s this decision really affecting? Not brokers, Robertson says.
“In my opinion, brokers should be most focused on the MLR provision and how the NAIC will weigh in on this matter. Repeal has been a long shot from the word go and this could have a significant impact on their future compensation.”