Elena Kagan is discussed in The Bob Zadek Show in two episodes, both concerning her position on the Supreme Court and questions about whether she should sit on particular cases. In the earlier episode, the attorney Larry Klayman described litigation he brought over Kagan’s participation in the Obamacare case; in the later episode, the law professor Gail Heriot noted Kagan’s recusal from the Fisher case on race-preferential college admissions. Neither excerpt treats Kagan as a guest or examines her jurisprudence at length; she figures as an example in broader arguments about the Supreme Court’s ethics and politicization.
The Obamacare recusal controversy
In an April 2012 episode, Bob Zadek introduced the question of Kagan’s role in the Obamacare litigation, asking Larry Klayman—described by Zadek as the founder of Judicial Watch and more recently of Freedom Watch—about Kagan, the Supreme Court, and Obamacare Who’s Looking Out for Us? (2012). Klayman said that Kagan had been the Solicitor General, that is the top lawyer of Obama’s Justice Department, and that she had advocated for Obamacare and had done legal analysis about whether in her view it was constitutional. He argued that Obama chose her to be a Supreme Court justice because he was packing the court and knew he would need a vote that brought him close enough to sustaining the legislation as constitutional.
Klayman said that rather than doing what other federal judges would have to do under the Code of Judicial Ethics, Kagan refused to recuse herself from the case and continued to sit on it. He stated that Freedom Watch filed a motion to have her either recuse herself or be disqualified. According to Klayman, shortly after that filing, Chief Justice Roberts issued an annual report saying that Supreme Court justices do not have to follow the rules of ethics of other judges in the federal system, that those rules may be unconstitutional, and that the justices do not have to sit in judgment of fellow judges. Klayman characterized this as Roberts saying the court belongs to the justices rather than to the American people.
Zadek supplied his own framing of recusal, saying that in the judicial system—not in the Supreme Court, but in what are called the inferior courts—there are clear rules on when a judge must step aside, and that those rules govern all judges. He said the Supreme Court has concluded that those rules do not govern it, and that the justices are given total power to decide for themselves whether to step aside. Zadek stated that if this were an inferior court, there is no question that Kagan would be required to step aside and not decide the issue, but because it is the Supreme Court the requirement is not there, and she will not step aside voluntarily. He added that Roberts had announced he would not use whatever power he may have as Chief Justice to ask her to step aside, and that the matter would be a stain on the reputation of the Supreme Court.
Klayman said he had two matters in different courts on the issue. He described a separate case concerning Obamacare in which Freedom Watch sought the contacts of the White House and communications with lobbying groups, and said a federal judge—a Clinton appointee—ruled that he was entitled to the information under the Federal Advisory Committee Act and gave Obama 30 days to say whether meetings were still going on. Klayman said the Justice Department responded that it did not have to tell the judge anything, and that after he filed a motion to have Obama held in contempt, the judge sat on the motion for six months. He drew from this a general claim that the courts are highly politicized and that judges are politicians in robes.
The Fisher case and recusal
In a February 2016 episode recorded after the death of Justice Scalia, Gail Heriot raised Kagan’s recusal in the Fisher case. Zadek had said he suspected Heriot would turn to Fisher; Heriot replied that Fisher is a very different thing because Justice Elena Kagan is recused from it Gail Heriot on the Significance of Justice Scalia’s Passing (2016). She said Fisher involves the University of Texas and is about race-preferential college admissions.
Heriot explained that because both Kagan and Scalia would not be there, it was essentially a seven-justice court, so 4-3 could still win the day. She said the crucial vote was still Justice Kennedy’s rather than Justice Scalia’s, and that the case would probably come out more or less the same way it would have with Scalia, though Scalia might have affected exactly how it was decided. She said it was most likely that Fisher would be a win for Miss Fisher, and that whether it was a small win or a big win was more up to Justice Kennedy than to Justice Scalia.
Asked by Zadek what the effect of a win for Miss Fisher would be, Heriot said it would mean it would be more difficult for the University of Texas and other colleges and universities to engage in race-preferential admissions policies, though how much more difficult is hard to say. She said it was very unlikely the case would have simply outlawed race-preferential admissions, but that it probably would make it somewhat harder for colleges and universities to engage in them. She described a situation in which schools like the University of Texas can give very large preferences based on race to racial minorities in the name of diversity, and said there is a lot of empirical evidence that the beneficiaries of racial preferences in admissions are less likely to emerge from college with a science or engineering degree and less likely to go on to graduate school with an eye toward becoming a professor.
Across episodes
The two episodes touch Kagan only in passing and from different angles: the 2012 episode presents Klayman’s account of Freedom Watch’s recusal motion against her in the Obamacare litigation, while the 2016 episode presents Heriot’s brief observation that Kagan was recused from Fisher. The excerpts show no development or exchange between the two treatments; Kagan is not a guest in either, and neither episode responds to the other.
What the sources do not cover
The excerpts do not state Kagan’s educational background, the dates of her confirmation or her tenure as Solicitor General, or any opinion she authored. They do not give the outcome of the Freedom Watch recusal motion, the disposition of the Obamacare case, or the result in Fisher beyond Heriot’s prediction. They also do not state which provision or amendment the Obamacare litigation turned on, nor the name of the statute at issue in Fisher.