It’s the first Monday in October, which means that the Supreme Court reconvenes in Washington. Their docket this term includes a number of First Amendment cases. And while the new members of the Court chosen by President Obama have created a true partisan divide, with the court’s members appointed by Democratic Presidents nominally on the center-left, and those appointed by Republicans on the right, we won’t get to see that in action entirely this year. Because Elena Kagan, the newest Justice, has recused herself from 25 out of the 51 cases so far this term.
Kagan will hear the first case argued before the court, then slip quietly through the burgundy velvet curtains behind the bench. She’ll be out of the action in all three cases : Tuesday. Her chair will be empty when the court returns next Tuesday and she’ll put in a half-day the next day.
Kagan’s old job as solicitor general – the “10th justice” – is initially making it hard to do her new job as the ninth justice [...]
Kagan is recusing herself from cases in which she had a role in drafting a brief for the Supreme Court, or when she was actively involved in a case in the lower courts. She took herself out of such deliberations when President Obama nominated her last May, so the pace of her recusals should slow as the court over the next few months completes the work of filling the term’s docket.
What this means is that, for the first year at least and perhaps longer, Kagan will be basically unavailable on a host of important cases, leaving the possibility of 4-4 splits at best for cases that could have been decided by a 5-4 majority. With Roberts, Alito, Scalia and Thomas making up a fairly formidable bloc, on any cases where Kagan recuses it would be nearly impossible to reach a decision. This means that whatever decision was made at the lower level would be allowed to stand. In addition, some civil liberties lawyers are hesitating about bringing other cases up until they can be sure that Kagan will be able to hear them.
That represents something of a crisis for the courts. And it also represents a virtual shield around the President’s policies on national security, and the various challenges to his habit of evading accountability for his predecessor, George W. Bush. Kagan almost certainly acted in accordance with those policies, and will likely need to recuse herself on almost all of those cases, giving the Roberts Four the opportunity to block any scrutiny if they so chose.
As Barry Friedman and Dahlia Lithwick argue in an excellent post today, the Roberts Court has created a variety of new strategies to mask their lurch to the right from the public while advancing it on the Court. This is another one, but it’s entirely not Robert’s doing; appointing Kagan necessarily created this kind of legal loophole. And I’m sure the people advising the President on these matters knew what they were doing.