According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare.
