Many conservatives, including Sen. Orrin HatchOrrin HatchHow to marry housing policy and tax reform for millions of Americans Though flawed, complex Medicaid block grants have fighting chance A guide to the committees: Senate MORE (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.