Thomas, Kagan resist calls for recusal

Supreme Court Justices Clarence Thomas and Elena Kagan did not recuse themselves from deciding how to handle lawsuits over President Obama's healthcare law, despite activist groups’ calls for them to do so.

Conservative groups had called for Kagan to sit out the healthcare case because she was solicitor general when the solicitor general’s office began planning its legal defense of the healthcare law and its individual mandate. She had previously indicated, however, that she was unlikely to recuse herself from the case.

Liberal groups said Thomas should not take part in the case because his wife has profited from speeches and other work explicitly calling for Congress to repeal the reform law.


But neither was absent from Monday's announcement granting a hearing in the case filed by 26 states and the National Federation of Independent Business. The court’s practice is to list any recusals at this stage of the process, but it does not explicitly note or explain justices’ decisions to participate in a particular case.

Thomas and Kagan aren't expected to change their minds.

"Presumably, they made whatever judgments they were going to make," said Greg Katsas, a Jones Day partner representing NFIB.