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An update on recusal

In the run-up to the nomination and confirmation of Elena Kagan, we published a mass of material.  At this point, only Kagan’s recusals from granted cases continue to draw attention.  I thought it would be useful to update the data that I have published on this, explain the discrepancy between my prediction that she would recuse from “around 16 cases” and her twenty-four recusals to date, and give my best estimate of the number of cases in which she will ultimately recuse.

The question of recusal was principally raised by Ed Whelan, who asserted that Thurgood Marshall recused himself from “57% of the total” decided cases in his first term and that it “may well be that Kagan, if appointed, would have to recuse herself from an even higher percentage of cases during her first term.”

My most recent extensive discussion of this issue is at the bottom of this long post .  I explained that it was incorrect to extrapolate from the experience of Justice Marshall, who after being nominated from his prior position as Solicitor General had recused from more than half of the merits cases in his first Term on the Court.

Among other things, I noted that Kagan would not have served as Solicitor General for the length of time that Marshall did, and that Kagan (unlike Marshall) was likely to stop acting on cases as soon as she was nominated.  I then broke down various categories of cases that could trigger recusal and did my best to estimate how many would arise in the case of Kagan.

In several categories of cases, my estimate was correct.  She has recused from four cases in which the United States was the petitioner; I predicted five.  She has recused from four cases in which the United States filed a brief in opposition; I predicted four.  She has recused from two cases that appear to likely to involve a decision about participation in lower courts (though as I note below, this number will continue to grow some); I predicted three.

By contrast, there were two categories in which my estimate was wrong.  First, I thought that the Court would take two cases in which she filed a brief at the invitation of the Court (CVSG) requesting the views of the United States (Staub and Costco).  Instead, the Court granted five more than I predicted (Sossamon, Williamson v. Mazda Motors, and three others in which the invitation brief was filed soon after Kagan’s nomination and in which she apparently was involved in considering the case around the time the President selected her:  Virginia Office, Whiting, and North American Stainless).

Second, there was a category of cert. grants that I simply had not anticipated at all:  while Solicitor General, Kagan appears to have signed a memo in four cases indicating that the United States had no interest in the case and would not participate in the Supreme Court.  I had tried hard to investigate when the Solicitor General participated in various stages of Supreme Court litigation but was not aware of this practice.  But the fact that she signed the memo in the capacity of a government lawyer is a basis for her to recuse.

The nine cases from those two categories make up essentially all the discrepancy between my prediction and the actual number of recusals.

What does the revised data tell us about how many recusals to anticipate going forward?  At this point, Justice Kagan is recused from twenty-four of fifty-two cases – forty-six percent.  As the Court fills the remainder of its calendar, will that percentage remain constant, so that if the Justices hear seventy-seven cases on the merits and decide eighty-five (include summary reversals) she would recuse from thirty-five to forty?  Could it in fact grow so that the assertion that Kagan would recuse in as many or more cases than Justice Marshall would come to pass?

The answer is no.  With the exception of the handful of cases that may be relisted from the summer list and granted, almost all of the categories of cases that would trigger Justice Kagan’s recusal are now exhausted – no more exist.   There are no more pending cases in which Elena Kagan as Solicitor General filed a petition for certiorari or brief in opposition.  Nor are there any in which she would have signed a “non-participation” memo.

There are three cases in which the Court invited the views of the Solicitor General shortly before Kagan’s nomination.  But I think none are likely to trigger recusal, because it is unlikely that she was involved in meetings in any of those cases at the end of last Term so soon after the Court issued the invitation.

The remaining recusals then would come from cases in which she approved some litigation decision in the lower courts while Solicitor General.  That is very difficult to predict because we don’t know what cases the Court is going to hear, but my best bet is that it will be roughly three or four cases.

In the end, I estimate that Justice Kagan will recuse from twenty-eight of the approximately eighty-five cases the Court decides on the merits this Term – almost exactly one in three.