Kagan Indicates She'll Recuse in A Twelfth Pending Case

When she was up for confirmation, Supreme Court Justice Elena Kagan provided the Senate with a list of 11 pending cases in which she would recuse because of her participation as solicitor general. In a routine order list issued this morning, Kagan indicated she was not participating in an additional case -- the vaccine liability case of Bruesewitz v. Wyeth, set for argument Oct. 12.

Kagan signaled her recusal, as often happens at the high court, by stating she was not participating in a routine action on the case -- in this instance a motion for divided argument and argument time for the acting solicitor general.

But the government's brief in the case is signed by Acting SG Neal Katyal, so why would Kagan have recused? The answer almost certainly lies in a related vaccine liability case, American Home Products v. Ferrari. At the invitation of the Court, the SG filed a brief in January in the Ferrari case, signed by Kagan when she was SG.

The final paragraph of Kagan's brief in the Ferrari case was: "The petition for a writ of certiorari should be held pending the disposition of Bruesewitz v. Wyeth, Inc., petition for cert. pending, No. 09-152, or be denied. The petition for a writ of certiorari in Bruesewitz should be granted."

That brief judgment made by Kagan on the Bruesewitz case was apparently enough involvement for her to decide that she should recuse, so she is likely not to be on the bench Oct. 12 when it is argued.

The order in the Bruesewitz case offered another possible development on the recusal front. At earlier stages, Chief Justice John Roberts Jr. had recused, likely because his financial disclosure form indicates ownership in stock in Wyeth. In today's order, while Kagan's non-participation was noted, nothing was said about Roberts' recusal. That may have been an omission, or it might also mean that Roberts has sold the stock to allow himself to participate. Justices have done that before, and law now allows them to do so without paying capital gains taxes on proceeds from the sale of the stock. Roberts may have felt a need to shed the stock because of Kagan's recusal, so as not to have Bruesewitz decided by only seven of the nine justices.

More later on today's orders. 

UPDATE: In another order on the list, the Court denied a petition for rehearing in the case British American Tobacco Ltd. v. United States, one of several pieces of tobacco litigation stemming from the RICO case brought by the government against cigarette makers. The Court denied review in the cases on June 28, but BATCo's lawyer Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner & Sauber sought rehearing, invoking a recent ruling that limited the extraterritorial reach of the RICO statute based on the Supreme Court's own decision in June in Morrison v. National Australia Bank.

Comments

[Sidney Gendin]

If the fact that a Supreme Court Justice has revealed how he will vote because of some decision he participated in while in his former life or because he argued in behalf of of one side or the other while serving as Solicitor General is a good reason for recusing oneself, then every member of the Court should recuse himself from every future case on the grounds that every case will closely resemble previous cases on which he voted and perhaps authored an opinion. Surely, we know how Clarence Thomas and Tony Scalia will vote on future abortion cases. In any case, it really doesn't matter that we know how a judge will vote so long as the vote has a rationale.

[Nathaniel]

Then wouldn't that suggest that an EIGHT justice Court would be better than seven as it increases the odds that four justices can be found to affirm especially since a 4-3 court and a 4-4 court render the same result? Finding 4 out of 8 is a lower bar to cross than 4 out of 7.

[Ted]

It's actually more advantageous to the petitioner to have the case decided by seven justices than eight: a petitioner needs only four justices to win with a seven-justice court, but the recused justice on an eight-justice court is indistinguishable from a vote for the respondents, because a 4-4 tie is an affirmance.