The JCN paper cites previously released emails in which Justice Department officials discuss their preparations for defending the healthcare law in court. The documents do not provide concrete evidence that Kagan was personally involved in the planning, but JCN has inferred from the emails that Kagan played an active role
The solicitor general represents the executive branch in court, and Kagan was solicitor general when planning got under way for lawsuits over the healthcare law. JCN’s report notes that the solicitor general’s office was involved in the planning before a suit had been filed, saying the early engagement shows that Kagan wanted to ensure a strong defense.
Kagan’s principal deputy at the time, Neal Katyal, said in one email that he handled the healthcare suit for the solicitor general’s office “and have never discussed the issue with her one bit.” JCN contrasted that statement with Kagan’s statement that she “neither served as counsel of record nor played any substantial role,” concluding that she must have been involved to some extent she did not consider “substantial.”
Although Kagan had not yet been nominated for a seat on the Supreme Court when the planning began, she had already been floated as a potential nominee for the first opening Obama filled, which eventually went to Sonia Sotomayor.