Kagan Recused From Pending Supreme Court Cases

The Supreme Court's newest justice will be participating in fewer cases than most new justices. That's because prior to Elena Kagan's appointment, she served as the government's chief advocate in the Supreme Court. As a result, she already has recused herself from more than 20 cases.

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ARI SHAPIRO, host:

The Supreme Court starts its new term on Monday, but the court's newest member, Elena Kagan, will participate in fewer cases than many other new justices. That's because prior to her appointment, she was solicitor general, the government's chief advocate for the Supreme Court. As a result, she has already recused herself from 25 cases. NPR legal affairs correspondent Nina Totenberg joins us now to discuss this. Good morning, Nina.

NINA TOTENBERG: Good morning, Ari.

SHAPIRO: What are the rules about when a justice is supposed to recuse herself?

TOTENBERG: Well, Justice Kagan said, at her confirmation hearing, that she would look to the letter and spirit of the code of judicial conduct, and the code is fairly straightforward. She should not participate in any case if she worked on it as a lawyer.

SHAPIRO: So, what does that phrase worked on it mean?

TOTENBERG: Well, according to ethics experts, it means not only signing briefs, it means editing them, participating in discussions about what position the government should take in any given case. But, if a case is being worked on in her office by other lawyers and she hadn't yet worked on it herself, then she doesn't have to recuse.

And just to be clear here: because there are thousands of government appeals in the pipeline all the time, the solicitor general often doesn't have anything to do with a case until just days before the briefs are actually filed.

SHAPIRO: Is that always true or are there instances where the solicitor general works on cases long before they're filed?

TOTENBERG: There are some where she does work on them long before they're filed. Usually big cases, where lawyers for various interests want the government to file a brief on their side, and the solicitor general, or the SG as she is known, often meets with these outside lawyers to hear their arguments.

This term, for example, there's a case in which the Chamber of Commerce is challenging an Arizona immigration law. And I know that Solicitor General Kagan met with outside lawyers to discuss this. So, even though the government filed this brief after she left that office, she's recused herself.

SHAPIRO: If Kagan recuses herself in a particular case, is she forever barred from ruling on the issue that that case involves?

TOTENBERG: No. The recusal line is generally: was I involved in this lawsuit. So, for example, Chief Justice John Roberts had to recuse himself from a major Guantanamo detainee case, because he participated in the same case as a lower court judge. But when similar issues came up in subsequent detainee cases, he did participate.

SHAPIRO: How common is it for a new justice to have to recuse from the number of cases that Kagan is recusing herself from?

TOTENBERG: Well, it's not common because, at least more recently, we haven't had top Justice Department officials migrating to the court. But it's happened many times in our history. Justice Thurgood Marshall, who was solicitor general, for example, recused himself from about half the cases the court heard in his first year. But that high number was largely because he remained SG until he was confirmed.

And Kagan didn't do that. She stopped being SG right after her nomination. So, this high number of recusals, I think, is front loaded. She'll probably be recused from about a third of the docket this year, and then next year her recusals will plummet to zero or something close to that.

One interesting thing, Ari, is that there are a number of cases that she's reused herself from that she really had nothing to do with. And these are cases that generally involve commercial disputes. And the Justice Department filed a notice that it was taking no position, and these are just routine evaluations. They're done by lower-level lawyers but she signed the filing, so she's taking herself out of those cases.

SHAPIRO: And when she's recused and there are eight justices on the Supreme Court, what happens then?

TOTENBERG: Well, the case goes forward, as usual. And if there's a four-to-four tie, the lower court opinion is automatically affirmed without the Supreme Court issued any opinion, then presumably the issue can come up in another case, later, where Kagan can participate.

SHAPIRO: NPR legal affairs correspondent Nina Totenberg. Thanks, Nina.

TOTENBERG: Thanks, Ari.

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