As the readers of Bench Memos know, a petition for certiorari is pending in the U.S. Supreme Court in Fisher v. University of Texas, a case challenging the racially discriminatory admissions policy of the University of Texas at Austin.
On October 27, I raised the issue of Justice Elena Kagan’s recusal from the court’s consideration of the cert. petition because of her prior involvement in the case. She was the solicitor general when the Justice Department filed an amicus brief in the Fifth Circuit Court of Appeals in support of UT’s prejudiced admission policy. Under Justice Department regulations, that brief could not have been filed without her consent.
I have obtained a copy of the permission slip actually signed by Kagan on March 8, 2010 (reproduced below). It shows her approval for the Justice Department’s “amicus participation in support of appellee” in the Fifth Circuit. This DOJ approval slip documents that Kagan must recuse herself from this case and cannot take part in any decision on whether to accept or reject the matter for review by the court.
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