Kagan was involved in formulating a legal defense for Obamacare before she was appointed to the Supreme Court

Given this new evidence, it would seem to be pretty clear that Kagan should recuse herself from the case on Obamacare. Yet, it also seems pretty clear that she won't. Unfortunately, it is up to the Supreme Court Justice herself to determine whether she should be recused. This is from an article in the Daily Caller:

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. . . .

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