The Supreme Court Monday issued a rearranged schedule for its first session of oral arguments next term, an action that would usually not be noteworthy. But it's clear that at least one change was made with newly sworn Justice Elena Kagan in mind. It will take a bit of explanation.
The first day of the fall term, Oct. 4, will be historic because for the first time in history, and because of Kagan's arrival, three of the nine justices who emerge from behind the velvet curtains at the start of the session will be women. It is a moment that could have been destroyed, or made awkward, by how the schedule of arguments had first been laid out in July. The first case to be argued that day on that first version of the schedule was Abbott v. United States, a federal sentencing case.
But because Kagan, in her former position as solicitor general, had her name on the brief in opposition filed in the case, Abbott was one of the cases she identified as requiring her recusal. That means she would not have been on the bench for the first case, which ordinarily would mean she would not have emerged from behind the curtains for the historic moment. Alternatively, she could have come out and sat for the Court's initial proceedings, possibly including swearing in new bar members and the like, and then stood up and left as soon as the Abbott case was called for argument. That might have been awkward.
Court officials have been aware of this awkwardness for some time, we have been told, and the easy solution was to switch Abbott with the second case to be argued that day, Ransom v. MBNA America Bank, a bankruptcy case that won't require Kagan to leave the bench. But the Court, not wanting to presume the actions of the other branches, did not make the change until Kagan was confirmed and sworn in. The swearing-in took place on Saturday, and on Monday morning the new schedule was announced. Crisis resolved. The historic moment will be preserved.
UPDATE: Scotusblog has a related post here suggesting that other changes in the October schedule may be prompted by Kagan recusals as well, allowing her to start the day on the bench and leave later. The revised calendar is here.