Kagan does not recuse herself from healthcare reform decision

Supreme Court Justice Elana Kagan did not recuse herself from Monday's decision not to fast-track the high court's review of Virginia's challenge to the healthcare reform law, prompting speculation that President Obama's former solicitor general intends to take part in the case if and when it reaches her level.

"If Kagan didn't recuse herself from this decision, it would hint that she won't recuse herself from any ObamaCare deliberations despite ... the possibility that she gave the administration legal advice on crafting and defending the law," the conservative website Hot Air opined.

"That's not exactly a surprise either; only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest."

Many conservatives, including Sen. Orrin Hatch (R-Utah), have said Kagan should sit out the healthcare challenge. But there was no indication Monday that she had abstained from the justices' discussion of whether to skip the Court of Appeals process in Virginia Attorney General Ken Cuccinelli's suit over the reform law's requirement that most people buy insurance. (The court only makes explicit announcements about recusal when a particular justice has decided to abstain from a case).

Kagan said last year that she had not been involved in the Justice Department's preparation for challenges to the coverage mandate, and she did not recuse herself from an earlier request for an expedited hearing. Last year, the Pacific Justice Institute attempted to send its lawsuit over the mandate directly to the Supreme Court. The justices rejected that request, with no mention of a recusal by Kagan.

Justice Clarence Thomas has also faced calls to sit out the healthcare appeal, due largely to his wife's financial ties to a conservative group that called the law unconstitutional. 

"I think we need to repeal ObamaCare," Virginia Thomas said last August in a speech to the conservative Steamboat Institute in Colorado.