Half-Justice Kagan

by Ed Whelan

Back in April, SCOTUSblog’s Tom Goldstein and I had a back-and-forth on the recusal obligations that Elena Kagan would face as a justice.  Declaring that “generally speaking, it’s possible to identify the precise cases in which she would be, or likely could be, recused,” Goldstein superconfidently asserted that “if Elena Kagan is nominated on May 1, 2010, she will recuse from 13 merits cases in October Term 2010” and that “[i]f the nomination occurred on May 15, it would be closer to 15.”  I responded that Goldstein’s analysis was “based on a number of assumptions that are highly dubious or clearly wrong and that operate to lowball his estimate of Kagan’s recusal obligations.”

President Obama announced Kagan’s nomination on May 10, so let’s go with Goldstein’s “closer to 15” prediction.  How have things turned out so far?

Well, whaddya know?  Tony Mauro reports today (emphasis added):

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….

From what I can tell, it’s point 2 in my original post that best accounts for Goldstein’s undercounting—namely, Kagan’s involvement in litigation in the lower courts, either authorizing appeals or considering amicus participation.  There may well be more recusals on that score, though the overall percentage of cases this coming term in which she recuses will surely decline.  [Correction (9/13):  I initially misread Mauro’s post; it may well be that many or most of the new recusals arise from Kagan’s previous consideration of amicus participation in the Supreme Court on already granted cases.  There is no reason to think that there will be any further recusals on that ground.]

I will acknowledge that, contrary to my point 3, Goldstein was correct that Kagan would not take on new cases as SG, and not permit her name on briefs in those cases, upon her nomination (even though his concept that she would “recuse herself” from further matters was badly confused).