I don’t agree. If Kagan’s husband had advocated for Obamacare, I wouldn’t expect her to recuse herself if she wasn’t otherwise involved.
If Thomas’s son was openly against obamacare, should he also have to recuse himself?
I don’t think spousal or family views should affect recusal and I don’t thing they’re covered under the statute.
Kagan can be shown to be in an offical capacity openly advocating a law and will then sit on that law’s legality. That’s a conflict of interest. What Thomas talks about with his wife over dinner is not a conflict of interest.
That federal statute that was quoted in the article, 28 USC 455, says that a justice should recuse themselves if he "...or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person...is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding..." Mrs. Thomas is head of a group lobbying against Obamacare. That could be construed as benefiting from the court striking it down.
It'd probably be best if both Kagin and Thomas recused themselves. However I don't see either one doing so.