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Just How Unhinged Is The Argument For Justice Kagan’s Recusal In The Affordable Care Act Case?

By Ian Millhiser  

"Just How Unhinged Is The Argument For Justice Kagan’s Recusal In The Affordable Care Act Case?"

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Yesterday, the Supreme Court denied a request by the right-wing group Freedom Watch to hear oral arguments on whether Justice Elena Kagan should recuse herself from the Affordable Care Act litigation. Normally, ThinkProgress would not comment upon such a banal and obviously correct decision, except that it is worth highlighting Freedom Watch’s brief which, sadly, is indicative of the kind of penetrating legal reasoning that characterizes claims that Kagan may not hear this case. Here is just a brief sample:

Simply put, “We the People” are fed up and have already entered into what is in effect a Second American Revolution because judges and other government officials behave as if they are “above the law,” in effect nobility who can do as they please. . . . In short, the comments of Chief Justice Roberts [suggesting that Kagan does not need to recuse] are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws. They are disgraceful at best and at worst amount to obstruction of justice. They are the result of someone who became Chief Justice by first ingratiating himself to the “Washington establishment,” and now seeks to act as the Chief Justice not just of the Court, but of this same establishment – which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out “We the People.” This is why in large part the nation is in a deep crisis; the majority of Americans have little if any respect for either the Supreme Court or our judiciary as a whole, notwithstanding their current similar disdain for the other two branches of government.

The situation is as bad as in 1776 when “We the People” declared independence from King George III and the British Crown. In the 236 years since the start of the first American Revolution, our current ruling class, which is not of the mettle of our Founding Fathers, – who pledged their sacred honor, fortunes and risked their lives to create a free nation – has come full circle. Today, the Supreme Court and the other two branches of government have assumed the role of a “royalty” – in some ways worse than even King George III – who feel free to ignore the legitimate interests and grievances of “We the People,” because they believe they are a “protected class” and above the law.

So, to be clear, the claim here is that far-right Chief Justice John Roberts is part of a giant conspiracy to help Kagan preserve President Obama’s chief legislative accomplishment, that this conspiracy is “in some ways worse” than monarchy, and that the American people are presently responding to it with a “Second American Revolution.” And this is what passes as legal argument among the Kagan recusal crowd. Sadly, this argument is only slightly better than the absurd claim that the Affordable Care Act itself is unconstitutional.

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