Here's the catch. Thomas is a constructionist who has demonstrated an ability to render decisions based on historical constitutional interpretations, Kagen is a largely untested judge who has written in support of the case she is hearing, thus she is more suspect than Thomas. I think she should recuse and I don't think Thomas would be swayed.
What an individual thinks is of no import to the issue, though.
It is a fact that the questions about Thomas' impartiality in this case
are reasonable based on the fact that he has personally profited (vicariously through his spouse) from direct opposition to the law in this particular case. Frankly, they are even
more reasonable than the questions about Kagen's impartiality.
At the same time, Kagen's previous role in the administration also makes the questions about her impartiality in this case reasonable.
But look at the reasoning you have given for questioning Kagen's impartiality: "Kagen is a largely untested judge who has written in support of the case she is hearing, thus she is more suspect than Thomas."
From what I can tell, the only thing she wrote in "support" of the law was "I hear they have the votes, Larry!! Simply amazing". This is not exactly writing in support of the case. It is actually a description of fact followed by her opinion that this fact was amazing.
That's borderline, but I think it qualifies as reasonable questioning of her impartiality in this case.
The fact that you talk about how she is untested, however, is an utterly
unreasonable questioning of her impartiality.
The fact that you are comparing their style of making constitutional interpretations in determining how impartiality they will be is
also unreasonable.
Personal agreement or disagreement with their decisions and decision-making process has
no bearing on whether or not they will make those decisions or engage in that process impartially.
I'm looking at this particular debate impartially myself. Personally, I lean towards Thomas' style of constitutional interpretation more than what I am assuming Kagen's style would be (Even though I think he is often inconsistent in his interpretations, often along partisan lines, he is still the judge
most in favor of dual federalism.) But the fact remains the questions abou this impartiality in this case are reasonable. As are the questions about Kagen's impartiality.
If, as was posted earlier, "a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” " then both should recuse themselves from the case.