Off the Bench: Exploring Kagan, Alito Recusals
Supreme Court Justice Elena Kagan’s absence from the bench October 15 during arguments in the closely watched Michigan affirmative action case highlights the fact that three years into her tenure, her prior job as solicitor general is still triggering numerous recusals.
Justice Samuel Alito Jr. has also recused in a significant number of cases already this term, some of which cannot be explained by his stock holdings. An inheritance in 2012 left him with a broader portfolio of stocks in companies involved in cases before the court. But he sold them late last year, making it unlikely that they are the reason for his latest actions.
The court's other justices also take themselves out of cases from time to time, but not usually in numbers seen with Kagan and Alito. Chief Justice John Roberts Jr. and Justice Sonia Sotomayor, like Alito, still run into cases that were pending in the lower courts where they previously sat as judges. Justice Stephen Breyer also owns stocks and has a policy of recusing in cases handled at an earlier stage by his brother Charles Breyer, a federal district judge in the Northern District of California. None of the justices ordinarily explain why they bow out of a case.
But during Kagan’s tenure as solicitor general in 2009 and 2010, her office considered filing a brief while the Michigan case was pending at the U.S. Court of Appeals for the Sixth Circuit, according to a lawyer involved in the litigation. No brief was filed.
Similarly, Kagan recused in last term’s affirmative action case, Fisher v. University of Texas, in which the SG’s office was involved. The federal recusal statute requires judges to step aside in cases in which they provided advice or counsel or expressed an opinion during prior government service.
The court’s junior justice is also still recusing herself in less-noticed cases as well. The orders list issued by the court on October 7, reporting the disposition of roughly 2,000 petitions filed over the summer, listed 35 cases in which Kagan was recused. On the October 15 orders list, her recusal was noted in five more cases.
Kagan’s recent recusals came in cases in which the court denied review, which has less impact than in cases the court has granted and will decide. In granted cases, with only eight justices sitting, the possibility of a 4-4 tie is real. But even with certiorari denials, the absence of one justice makes it that much harder for the party seeking review to obtain the four votes needed for the court to add the case to its argument docket.
One Kagan recusal announced October 7, for example, came in a case brought by former Newark New Jersey mayor Sharpe James, who was challenging his federal conviction on corruption charges. Kagan also did not participate in the court’s decision to deny review in Palmquist v. Shinseki, the case of a federal employee who claimed he was discriminated against because of a disability.
Kagan also bowed out of Hartman v. Moore, a long-running First Amendment retaliation dispute between a Texas businessman and a group of federal agents that the high court ruled on once before. Chief Justice John Roberts Jr. also recused, likely because the case arose from the U.S. Court of Appeals for the D.C. Circuit, where Roberts was a judge before joining the Supreme Court in 2005.
Kagan is not the first justices to face the problem of stepping aside in cases they reviewed at earlier stages as solicitor general. Thurgood Marshall and Stanley Reed, both former SGs, had the same experience when they joined the Supreme Court.