Last month, Chief Justice Roberts gave his annual year-end report on the federal judiciary, but it was quite different from prior ones. For the first time, it focused on when Supreme Court Justices should disqualify (or “recuse”) themselves from a case because of a conflict of interest. He acknowledged that the Code of Conduct for United States Judges applies to all federal judges except Supreme Court Justices. However, he assured us that the Justices do, in fact, look to this Code for guidance, and follow it, along with the federal statue, federal advisory opinions, and court precedent.

All this comes hard on the heels of those calling on Justice Elena Kagan to disqualify herself in the ObamaCare litigation because of her role, as Solicitor General, in preparing its constitutional defense. These calls have intensified with the release of recent emails. Justice Kagan’s supporters respond that she testified in her confirmation hearings that she had nothing to do with ObamaCare.

First, her phraseology was much more precise. She said she would only recuse herself from any case in which she “officially formally approved something,” or “served as counsel of record” or “played any substantial role.” But the statute requires disqualification if Kagan, as a federal employee (she was the former Solicitor General) “participated” as an “adviser” on a matter, even if she did not give any formal advice. She also must disqualify herself if her impartiality might reasonably be questioned.

In response to a Freedom of Information (FOIA) request, the Obama Administration has turned over some emails but it refuses to turn over many others because, it says, these emails are “protected by the attorney work product doctrine.” That doctrine, the DOJ affidavit explains, covers discussion by “OSG” (Office of Solicitor General) lawyers about “legal issues, arguments, and strategy concerning anticipated” litigation over ObamaCare. So, the DOJ is simultaneously claiming that it completely walled off Kagan from any discussions involving the constitutional defense of ObamaCare, while admitting that Kagan was participating in emails discussing “legal issues, arguments, and strategy concerning” the anticipated ObamaCare litigation.

In March of 2010, there are a series of emails to or from Kagan; the subject line of all of them is “Health care litigation meeting.” The DOJ refused to disclose these emails because they discuss legal arguments for the “expected [health care] litigation.” If Kagan hermetically sealed herself from discussions on shaping defenses for ObamaCare litigation, why is she repeatedly sending and receiving emails shaping defenses for ObamaCare litigation? The Government refuses to release these emails, on grounds of a litigation privilege, while claiming that it erected such a solid wall around Kagan that she never would send or receive such emails. This wall must have more holes than Swiss cheese. If we can read theses emails, we will learn if the legal theory developed in those meetings is the legal theory that Kagan adopts when she rules on the case.

A week after the president announced her nomination to the Supreme Court, a DOJ press officer emailed the Deputy Solicitor General and asked if Kagan had been involved in the preparations for health care litigation. Notwithstanding these earlier emails, he responded, a minute later: “No she never has been involved in any of it. I've run it for the Office, and have never discussed the issues with her one bit.” A few minutes later, he forwarded that email to Kagan.

One would think, if Kagan’s Deputy was correct, that Kagan would simply say, “of course,” or, perhaps nothing. But that is not what happened. Less than two minutes later, Kagan wrote: “This needs to be coordinated. Tracy [the DOJ press officer], you should not say anything about this before talking to me.” What is there to “coordinate”? Why would Kagan suggest that they have to get their stories straight? And why “talk” instead of using emails (which leave a paper trail)?

The Judicial Conference of the United States publishes a Compendium of Selected Opinions, to guide federal judges on ethical issues. One section deals with “prior government employment.” The typical fact scenario is a government employee (often a U.S. Attorney) who becomes a judge. Several pages summarizing prior ethics opinions all say the same thing: if the U.S. Attorney was personally involved in a pending or impending matter, she must disqualify herself, and the parties cannot waive that disqualification; if she was not personally involved, but the impending matter was in her office (under her responsibility), she must disqualify herself, unless the parties waive the disqualification.

At the very least, Kagan must disqualify herself because her office was involved with the prospective ObamaCare litigation. However, the parties could waive this disqualification. Of course, if Justice Kagan was personally involved, she will be in the category where the parties cannot waive disqualification.

Justice Kagan should also follow Supreme Court precedent on this issue. In Schneiderman v. United States (1943). Justice Jackson refused to participate because the case began in 1939, he became Attorney General in 1940, and thus he “succeeded to official responsibility for it.” Therefore, he disqualified himself and wrote his opinion because “I desire the reason to be a matter of record.” The remaining question is if Chief Justice Roberts was correct when he assured us that the Justices follow their own precedent on disqualification.

Mr. Rotunda, co-author of Legal Ethics (published by the American Bar Association & West Pub. Co.), is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University.