Justice Elena Kagan has taken herself out of certain cases because of her former role as President Obama’s solicitor general.
Kagan takes place on court, then steps back
Newest justice has recused self in 24 cases; For first time, 3 women serve
WASHINGTON — The Supreme Court began a new era yesterday with three women serving together for the first time, Elena Kagan taking her place at the end of the bench and quickly joining in the give-and-take.
Hours later, however, Kagan left the courtroom while the other justices remained to hear the second of two cases. It is a situation that court-watchers must get used to this term: Kagan has taken herself out of 24 pending cases because she worked for 14 months as the Obama administration’s solicitor general, the government’s chief legal representative in the Supreme Court.
Today, Kagan’s seat will be empty again as justices hear arguments in three more cases.
Opening its new term on the traditional first Monday in October, the court turned down hundreds of appeals, including one from the relatives of victims of the attacks of Sept. 11, 2001.
They are seeking a proper burial for material taken from the World Trade Center site because it could contain the ashes of victims.
The justices also refused to hear several criminal appeals, including one by John and Timothy Rigas, founders of former telecommunications giant
The substitution of the liberal-leaning Kagan, former dean of Harvard Law School, for the like-minded John Paul Stevens, who retired after serving for 34 years, is not expected to make a difference in the ideologically tinged cases in which four conservatives face off against four liberals, with Justice Anthony Kennedy the decisive vote. Kennedy sides more often with the conservatives.
That matters little when the court hears cases such as the first of its term, a bankruptcy dispute with no evident ideological issue.
Kagan, 50, may have felt somewhat more comfortable than usual on a justice’s first day in court because two of the lawyers in the case worked for her when she was at the Justice Department.
Kagan is recusing herself from cases in which she had a role in drafting a brief for the Supreme Court or when she was involved in a case in the lower courts. She took herself out of such deliberations when President Obama nominated her in May, so the pace of her recusals should slow.
But initially, Kagan’s absence will affect some important corporate and employment-discrimination cases, as well as a highly anticipated review of one of Arizona’s attempts to crack down on illegal immigrants.
The issue might affect the court in other ways. Steven Shapiro, legal director of the American Civil Liberties Union, said last week that some lawyers are holding off on bringing issues to the court until they can be sure Kagan will hear them.
An eight-member court creates an advantage for the party that won at the lower level: It needs to convince only four justices, because an evenly divided court keeps the lower-court ruling in place without creating a national precedent.
The immigration case, Chamber of Commerce v. Whiting, is an unusual alliance between business groups, civil liberties organizations, and the federal government to overturn a law that allows the state to yank a business’s license for hiring undocumented workers.
The US Court of Appeals for the Ninth Circuit upheld it, but the solicitor general’s office told the court that it intruded on the federal government’s exclusive authority on immigration laws.
Kagan’s absence may be felt most strongly in two cases that ask whether federal regulation protects companies from lawsuits brought under state consumer protection laws.
Maureen Mahoney, who represents
The case illustrated another aspect of the recusal problems justices can face.
The court confirmed last week that Chief Justice John G. Roberts Jr., who has recused himself in cases involving Pfizer, has sold his stock. If he had not, only seven justices would have been available to hear the case.
Material from the Washington Post was used in this report.