Supreme Court Justice Elena Kagan this week quietly recused herself in 10 cases that will be argued in the term beginning Oct. 4, bringing to 21 the number of cases in which she will not participate.
That represents more than half of the 40 cases the Court has already agreed to hear in the new term -- a number that will grow in coming months as the justices agree to hear arguments in more new cases.
During her confirmation this summer, Kagan already indicated she would recuse in 11 cases in which she was counsel of record as solicitor general. The new batch appears to reflect a determination that her participation at earlier stages -- even where her office did not file a brief -- required her to step aside.
The best-known of the new cases in which Kagan will recuse is Chamber of Commerce v. Whiting, testing the power of states to regulate hiring of illegal aliens.
The new recusals were revealed in a series of unannounced entries on the Court’s docket on September 7, the day before documents indicating her earlier participation in some cases were released by the solicitor general’s office to The National Law Journal.
The Journal had earlier requested the documents, known as “no participation slips,” which record the official decisions of the solicitor general whether or not to participate in pending cases, usually as a friend of the court. In several cases, Kagan’s signature was on the slips, attesting that the government would not participate.
For example, the U.S. has not filed any brief in Premo v. Moore, a state habeas corpus case set for argument Oct. 12, or in County of Los Angeles v. Humphries, involving constitutional violations by localities, which will be argued Oct. 5. But in both cases, Kagan signed the no-participation slips, on April 27 and April 6, respectively, viewable here and here. Those are now among the new cases in which Kagan will not participate.
In another pending case, Kasten v. Saint-Gobain Performance Plastics, a Fair Labor Standards Act dispute, Acting Solicitor General Neal Katyal submitted a brief for the United States in June. But a document released to The National Law Journal reveals that Kagan signed a slip in 2009 approving amicus participation at the appeals court level. Kagan is recusing in this case as well.
In answers to questions from Sen. Jeff Sessions, R-Ala. about her recusal plans, Kagan forecast her actions when she said she would not participate in cases in which she approved or denied amicus participation. “If I personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position, then I would recuse myself from a case,” she wrote to Sessions.
In addition to the Premo, Los Angeles and Kasten cases already mentioned, the other new cases in which Kagan is recusing are: Henderson v. Shinseki, Thompson v. North American Stainless, Gould v. United States, Harrington v. Richter, Chamber of Commerce v. Whiting, Virginia Office for Protection and Advocacy v. Stewart, and Bruesewitz v. Wyeth. In Bruesewitz, involving vaccine liability, Kagan had already indicated her likely recusal by not participating in a routine order in the case, as we reported here.
The 11 cases Kagan identified this summer in her Senate questionnaire as cases in which she would recuse are: Abbott v. United States, Michigan v. Bryant, NASA v. Nelson. Flores-Villar v. Unitred States, United States v. Tohono O’odham Nation, Costco v. Omega, Staub v. Proctor Hospital, Williamson v. Mazda Motor Company of America, Sossamon v. Texas, Mayo Foundation v. United States, and Pepper v. United States.
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