Tomorrow morning the Court is scheduled to hear oral argument in two cases.  But after the first one ends, Justice Elena Kagan will slip quietly out of the courtroom, leaving her eight colleagues behind to hear arguments in Fisher v. University of Texas at Austin, the important test of the use of race in higher-education admissions.

Justice Kagan will not take part because she is recused – that is, she is not participating because of an actual or potential conflict of interest.   For Justice Kagan, the conflict stems from the fact that she served as the Solicitor General when the Department of Justice filed a friend-of-the-court, or amicus curiae, brief in the Fisher case when it was pending in the U.S. Court of Appeals for the Fifth Circuit; in that role, she would have been involved not only in the decision to file an amicus brief, but also in decisions regarding the content of the brief itself.

The question of when Justices recuse and what standards apply is an important one for students who follow the functioning of the Court as an institution, as well as for students who study judicial ethics. More broadly, the outcome of the affirmative action case will have an impact on public colleges and universities throughout the nation, and her absence could conceivably affect the decision.

Justice Kagan served as the Solicitor General from March 2009 to August 2010.  During that time, she of course participated in myriad cases pending before the Supreme Court, either on certiorari or on the merits.  But she also participated in the earlier stages of the appeals process – for example, the decision whether to appeal a case that the United States lost in the district court or, as here, the decision to file an amicus brief on appeal – for many cases that eventually made their way to the Supreme Court.  A federal statute requires recusal whenever a federal judge previously served as “counsel” or “adviser” in a case, although it is largely up to each individual Justice to decide when that standard is met. (More on that point later.)

With Justice Kagan’s third Term now underway, and her time in the Justice Department becoming more distant, there are far fewer cases in which she is recused.  The spotlight returns to the recusals, however, when Justice Kagan does not participate in a high-profile case like Fisher.

When Justice Kagan was confirmed to the Court, there was some surprise among close followers of the Court at the sheer number of recusals in her first Term. (Indeed, before her nomination and confirmation, some Court watchers had even suggested that the prospect of widespread recusals might be a reason not to nominate her to succeed Justice John Paul Stevens.)  In that Term, which ran from October 2010 through June 2011, the Court issued full, signed opinions after briefing and oral argument in seventy-five cases. Justice Kagan sat out twenty-eight of those cases, just over one-third of the total. But two of the cases from which she was recused ended with the Court deadlocked four to four after briefing and oral argument; in such cases, it does not issue an opinion but instead simply affirms the ruling of the lower court.

This issue is not unique to Justice Kagan. The last elevation to the Court after a stint as Solicitor General was Thurgood Marshall, who was confirmed in 1967. According to a SCOTUSblog column before Justice Kagan was nominated, Marshall recused himself in many more cases than Kagan in his first Term, a disparity that may be explained at least in part by the facts that he served slightly longer as the Solicitor General and the Court was deciding significantly more cases on the merits each Term.

While it is difficult to know whether or how Justice Kagan’s recusals have affected the internal working dynamic of the Court, it is clear that, from the outside, there has been much less actual disruption than some Court watchers feared. Indeed, the fact that the Court has deadlocked in only two of the thirty-two cases in which Justice Kagan has been recused suggests that the recusals have not been very disruptive at all.

But it is quite possible that statistics do not tell the whole story. A Justice’s participation in a case is not merely a matter of numbers and voting. Each of the nine may influence the direction of a decision by having input behind the scenes in how broadly or narrowly a decision is written, on what the legal basis of the decision should be if there is more than one option, or even by brokering compromises that change the outcome of a case. When any Justice is recused, it is not simply that she does not participate in the oral argument; she sits out all of the discussions and deliberations that take place within the Court over that case and has no input at all in the decision. The Court loses the benefit of that individual’s ideas and insights, not just her vote.

The biggest controversy by far over Justice Kagan’s role was her decision last Term not to recuse herself in the Affordable Care Act case, National Federation of Independent Business v. Sebelius. Critics, mostly partisan conservatives who questioned the constitutionality and wisdom of the health care law, argued that she was required to recuse herself from the case because she had played a role in the Justice Department’s decisions about how to defend the Affordable Care Act in the federal courts.  Partisan liberals made similar claims that Justice Thomas should recuse because of positions taken by his wife. In response, Justice Kagan’s defenders said that she was not required to step aside because she had not played a significant role in those decisions. The Court upheld the law on June 28, with Justice Kagan joining the Chief Justice and Justices Ginsburg, Breyer, and Sotomayor in the majority.  Notably, by the time of the decision, all of the recusal furor had died down.

There was also speculation that Justice Kagan’s recusal may have played a role in the outcome of another important case last Term, involving Arizona’s controversial immigration law, S.B. 1070. On June 25, the Court, by a vote of five to three, ruled that three of the four provisions at issue in the case were preempted by federal law. The deciding vote in Arizona v. United States arguably belonged to the Chief Justice, who joined Justice Kennedy and the Court’s more liberal members, Justices Ginsburg, Breyer and Sotomayor. Several commentators were surprised by the Chief Justice’s vote and suggested that he may have joined the majority to avoid having the case end in a tie vote.

In the new Term that began last Monday, the Court has already scheduled thirty-one oral arguments and has agreed to hear cases for another sixteen oral argument slots – forty-seven in all. Although the Court is likely to add at least another twenty or so cases to its merits docket for this Term, so far Justice Kagan is recused in only two cases on the merits, Arkansas Game and Fish Commission v. United States, argued on October 3, and Fisher.

Even as she nears the end of the line of cases in which she has to recuse, Justice Kagan’s recusal in Fisher theoretically could be the most important. The Court has always been closely divided on issues of affirmative action, voting five to four in 2003 to uphold an affirmative action plan for the University of Michigan Law School. Now the Court will consider whether the University of Texas can consider race in filling the slots that remain in its undergraduate class after students are admitted under the “top ten percent plan” – which, as its name suggests, does not consider race but instead offers a place in the freshman class to any student in the state who graduates in the top ten percent of her high school class.

Justice Kagan’s absence is felt in two ways. First, as the former dean of the Harvard Law School, she may be the only member of the Court with direct experience with affirmative action admissions policies in higher education. The Court will not have the benefit of this expertise.

Second, the Court is likely to be very closely divided. Four conservative Justices (the Chief Justice and Justices Scalia, Thomas, and Alito) may be inclined to throw out the Texas plan and perhaps prohibit affirmative action altogether, while the Court’s three more liberal Justices (Justices Ginsburg, Breyer, and Sotomayor) may vote to uphold affirmative action and the Texas plan. The case could turn on the views of Justice Kennedy, and in some sense Justice Kagan’s absence makes the outcome even more of a toss-up.

But in reality, it is unlikely to make a difference in the final vote.  Opponents of the Texas plan need five votes to reverse the Fifth Circuit’s decision in the university’s favor.  If they get only four, the university prevails with a tie vote.  Because it is all but certain that Justice Kennedy would be more likely than Justice Kagan to find the university’s plan unconstitutional, her vote is very unlikely to be decisive.

There has been a push in some circles – particularly academic ones – to change the rules for recusals in the Supreme Court. The proposals would require the Court to adhere to the Code of Judicial Conduct that applies to other federal courts and in most state courts. The focus of these reform efforts, which do not seem to be under active consideration by the Court and which have stalled in Congress, is not so much the type of government-service-driven recusals at issue for Justice Kagan but rather the cases in which there may be a perception that a Justice lacks impartiality because of her personal ties to the parties or the issue or because of her public statements on the topic.

Notwithstanding that the end of the recusal road seems to be almost in sight for Justice Kagan, the recusal issue may arise again at least one more time in the near future.  It is widely expected that this Term the Court will consider the constitutionality of the federal Defense of Marriage Act (DOMA), which excludes same-sex couples from the definition of “marriage” for a host of federal laws, programs, and benefits.  Although the Court has not yet acted on a number of petitions challenging the law, Justice Kagan has indicated that she would likely be recused in the leading case, arising from the U.S. Court of Appeals for the First Circuit, because she played a role in the government’s appeal to that court. But she is expected to participate if the Court instead grants review in one or more of the other cases seeking review of district court decisions invalidating the law, because she played no role in those cases at all.  And given the volatile politics of the issue, if the Court considers the Defense of Marriage Act, it would not be surprising if opponents of same-sex marriage attempted to argue that Justice Kagan must recuse from the case because she played a role in the Obama Administration’s formulation of its position on the issue.

This remains an interesting and open question. Should a Justice recuse only as to a specific case in which she played a part in the past? Or should she instead be required to recuse herself from any cases raising the same issue – in this instance, the constitutionality of the same provision of the Defense of Marriage Act? This is a debate that is certain to ensue if the Court in the weeks ahead announces plans to consider the Defense of Marriage Act. And if this debate takes place, Justice Kagan’s recusals will continue to occupy at least part of center stage.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Justice Kagan’s recusals, SCOTUSblog (Oct. 9, 2012, 9:50 PM), http://www.scotusblog.com/2012/10/scotus-for-law-students-sponsored-by-bloomberg-law-justice-kagans-recusals/