While serving as Solicitor General, Justice Elena Kagan allegedly began maneuvering to avoid having to recuse in any eventual challenges to the Patient Protection and Affordable Care Act, months before her nomination was announced — indeed, even before she was told she was under consideration — according to a series of documents released in response to a Freedom of Information Act request. The National Law Journal reports on the disclosures here (registration required).
The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided.
The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. . . .