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Health care case gets full Court – Kagan and Thomas included

When the U.S. Supreme Court granted certiorari to decide the constitutionality of the federal health care law’s individual mandate, as well as several other jurisdictional and substantive issues, there was a notable omission: no mention was made about recusal of any justice from the decision.

Despite calls from advocates on both sides of the political spectrum for Justices Clarence Thomas and Elena Kagan to remove themselves from any consideration of the health care case, all indications suggest both will be present during the 5 ½ hours of oral arguments slated for the spring. Normally a justice who recuses from a particular case will indicate it in the cert order. But no such indication was made yesterday by Thomas or Kagan.

Critics of Thomas cite the work of the justice’s wife, Virginia “Ginni” Thomas, founded a Tea Party-affiliated group that has called the health care law unconstitutional and worked for the Heritage Foundation, which also opposes the health care law.

Meanwhile some Republican lawmakers have called for an investigation into the role Kagan played in preparing the legal defense to challenges to the health care law during her tenure as solicitor general.

Justices decide for themselves whether to sit out any given cases due to some potential conflict.

“Presumably, they made whatever judgments they were going to make,” said Greg Katsas, a Jones Day partner representing one of the petitioners in the case, told The Hill.

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