Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
I explained why I don’t think Justice Kagan needs to recuse here, though I believe it’s a closer case than some have acknowledged.