The issue of the degree to which now-Justice Elena Kagan participated in the government's anticipated and actual defense of the ACA while serving as Solicitor General has surfaced again. The occasion is the release of a batch of documents, in response to a Freedom of Information Act request, revealing a number of communications about the issue among lawyers in the Department of Justice, and especially the Office of the Solicitor General. The documents seem to show as follows:
* Kagan knew by early March 2010 that she was under consideration for the expected vacancy to be created by the expected retirement of Justice Stevens.
* Kagan, and others in the SG's office--including current Acting SG Neal Katyal--began taking steps to exclude Kagan from substantive involvement in the matter, presumably in anticipation of the potential recusal issue.
* Indeed, there is circumstantial evidence that, as early as January 2010--more than two months before the ACA was enacted--Kagan had this in mind and asked Katyal to to attends meetings on behalf of the office about potential defenses of the statute.
* As to nub of the matter, Kagan--as we would expect--appears to have had no substantive involvement, and Katyal (who now appears likely to argue some or all of these cases in the Courts of Appeals) became the office's "lead" on matters related to the ACA litigation. In other words, this confirms what she stated at her confirmation hearings.
All of this seems to confirm what everyone surmised at the time of Kagan's confirmation hearings. Namely, we all suspected that (1) the SG's office must have been involved in some way in the DOJ's response to this litigation, and shortly after the lawsuits were filed on March 23, 2010, if not before; and (2) given Kagan's statements about her lack of substantive involvement in any of the litigation, there must have been some deliberate effort to cut her out of the cases. These documents show both of these suppositions to be true.
In other words--unless I have missed something--the details revealed by the documents are somewhat interesting, at least for geeks interested in the inner workings of the SG's office. But there does not appear to be anything especially newsworthy here, at least as it relates to the propriety of Kagan participating in cases challenging the ACA's constitutionality (or the truthfulness of her testimony at her confirmation hearings).
(You might remember that Kagan participated in the Court's consideration of the petition for a writ of certiorari before judgment filed by the plaintiffs in Baldwin v. Sebelius, a case now pending before the Ninth Circuit. The Court, of course, denied that petition.)
You can access the newly released documents here.