Kagan on the Court – Not the Victory Liberals Had Hoped

By YeOldeScribe ~ May 31st, 2011 @ 10:33 pm

We spent a lot of time this spring taking a look at the Supreme Court, but we were looking at the State Supreme Court of Wisconsin and the election for Justice David Prosser’s seat which he should have lost retained. But while we were focusing our attention on that Supreme Court, an interesting scenario was unfolding at the US Supreme Court – the highest court in the land.

You all should be well aware by now that Elena Kagan became the Supreme Court’s newest member last August. What you might not know about her is her background, which is interesting considering the position she now hold. Kagan was the former Dean of the Harvard Law School before she was tapped to be the Solicitor General by then Presidential nominee Barack Obama. When Obama won the election, Kagan became the first woman to hold the position.

So unless you’ve got C-SPAN programmed in as a ‘favorite’ on your remote, you’re probably wondering exactly what does a Solicitor General do? To be perfectly fair, we hadn’t even heard of the position before Kagan was nominated to the high court, so don’t feel bad. The Solicitor General is best described as the “10th member” of the Supreme Court. He or she determines the legal stance the US government will take in cases brought before the Supreme Court. On top of that, the Solicitor General also files briefs for the Federal Court System, and often times, the Supreme Court will ask the Solicitor General if a case is ripe to be reviewed.

Needless to say, the job of the Solicitor General is vast, and he or she touches almost every piece of paper regarding the Federal Government in regards to the Judicial System. Kagan did an excellent job as the Solicitor General – despite the fact that she never served as a judge, nor had she ever argued a case before the supreme court before the appointment. In a cruel twist of irony, the fact that she did her job so well is coming back to haunt her – and the liberals who pushed for her nomination.

Kagan served for 14 months as the Solicitor General, and as we previously mentioned, did a darn fine of it. She prepared briefs for the court, advised them on cases which might fall under their purview, argued cases in front of the court and was the face of the US Federal Government in front of not only the Supreme Court, but all Federal Courts. In doing so, she put her name on thousands of cases. The only problem is that now, many of those cases which she played an integral role in are coming before the Supreme Court, which she’s now a part of.

Luckily for democracy/justice, there’s a real easy way to solve this problem – if a judge ever finds him or herself in a situation where there’s a conflict of interest, the judge simply recuses him/herself, and is not a part of the case. That way, a decision can still be rendered impartially by the eight other justices.

Justices usually don’t have to recuse themselves from cases – especially high profile ones – but the process is far from out of the ordinary. And yet, Kagan has put the court in a position that is very out of the ordinary. Because of her thorough involvement with many of the cases coming before the high court, she’s had to recuse herself from 25 of the 51 cases the Supreme Court said they’d hear this year. That means for almost half the decisions rendered this year, Kagan will not be allowed to take part.

That’s assuming the court only hears those cases, too. This article points out that the Supreme Court is expected to hear 25-35 cases on top of that, and Kagan would have to recuse herself from many of those, too. Granted, by next year and in the years to come, Kagan will have to recuse herself from fewer and fewer cases. But it’s still a problem – not so much for justice and democracy, but for her and the liberals who pushed her on the court.

There were worries that Kagan would be too conservative for Obama’s liking and would turn into his version of David Souter. Souter was appointed by George H.W. Bush and was widely expected to be an anchor for conservatism, but he shifted towards the middle and ended up siding with the liberal members of the court more often than not, making his appointment a “failed” one for the first Bush administration. Only time will tell if Kagan will do the same, but early indications are that she’ll fit right in with the other liberal members of the court.

The reason why we don’t know yet is because she doesn’t have a lot of cases under her belt, mostly due to the fact that she’s recused herself in so many. For example, in the recent Supreme Court case we talked about regarding part of Arizona’s Immigration Laws, Kagan had to recuse herself. It’s widely assumed that the more controversial aspects of Arizona’s Immigration Laws – those that force police officers to demand proof of citizenship for anyone who looks un-American – will fall before the high court as well in a few year’s time. When those proceedings arrive in front of the court, Kagan would again have to recuse herself.

So why is this such a problem? The first reason is simple, and requires math so easy a 1st grader could do it. The vast majority of cases that come before the Supreme Court are appeals from lower Federal Courts. The Supreme Court requires a majority decision to overturn the lower court’s ruling. So if a case is brought before the court, a simple majority of justices is required to overturn the previous decision. If a majority of justices decide the lower court made the correct ruling, it stands. Conveniently, there are nine justices sitting on the bench right now, so if all are present, there are no ties. But what happens when a justice – say Justice Kagan – has to recuse herself and the other justices split evenly, rendering a 4-4 decision. What happens then?

As we stated earlier, a majority is required to overturn the lower courts’ decision, and if that majority is not reached, then the lower courts’ ruling stands. So how often does the court rule on a 5-4 decision? If you look up the statistics on it, they will deceive you. You’d note that most of the time, the decisions aren’t split 5-4, but 7-2, 8-1 or even 9-0. So why does it matter that Kagan isn’t there to affirm what the rest of the court is already saying?

Because the more controversial cases are not so easily decided. We noted that the court is expected to hear upwards of 70 cases this year alone – but chances are, you’ll hear about less than 10 of them. Most of the court’s decisions are what the public and mass media consider ‘boring’. They involve business rules or decisions on finance that are so intricate they’ll probably never need to be referenced again. But controversial cases – the ones the media often report on – rarely see anything other than 5-4 or 6-3 decisions, especially given the current makeup of the court.

Right now, the court has four justices that consistently vote conservative (Thomas, Roberts, Alito and Scalia), four justices who consistently vote liberal (Kagan, Ginsberg, Stotomayor and Bryer), and one judge who consistently votes inconsistently – Kennedy. Kennedy is sometimes considered just to the left of middle, but switches sides more often than not, and is almost always the swing vote in close cases. Kagan’s recusals are a big deal because if Kennedy does side with the liberals, the court issues a 5-4 decision with Kagan and that decision sticks. But without her, the decision is a 4-4, meaning the lower courts’ ruling would stay. And remember, the Supreme Court is the highest court in the land – there’s no safety net past them for cases to be looked at.

But surely there aren’t any high-profile cases that would come up where Kagan would have to recuse herself and thus changing the court’s majority opinion on the case, right? Well, we already told you about one – the Arizona Immigration Law case – which she’d have to recuse herself for, and the court would likely be split on that, with Kennedy siding with the liberals. So depending on what the lower courts do, because Kagan’s a member of the court but wouldn’t be on the bench, the court’s ruling might be changed from a 5-4 reversal to a 4-4 affirmation.

But there’s an even bigger case that the Roberts’ Court will have to hear that Kagan could not be a part of – that small governmental program known as Health Care Reform (what some inappropriately and inaccurately call ‘Obamacare’). There’s been a lot of talk about Justice Thomas and whether he should be on the bench when the case inevitably gets to the Supreme Court, but Kagan needs to consider herself for recusal as well. As this article points out and cites in multiple places, there’s no denying that she was involved in the US Government’s defense of Health Care Reform. The details on how involved she was haven’t been released yet, but she’ll probably need to recuse herself when the case hits the high court. And seeing as how one lower court has already thrown out the entire law because of the problem with mandated insurance for all people, it would require a majority decision from the court to get a reversal – four votes won’t be enough (unless Thomas actually does recuse himself, which he has said he would not do, or if an appellate court re-instates the law, which is much more likely). Regardless, liberals across the nation would rest easier if they knew they could count on Kagan to uphold the constitutionality of the law, something she won’t be able to do because of a conflict of interests.

So while Kagan’s appointment may not be a failure in the same manner as Souter’s was, it could still be considered a failure if she’s unable to rule on key decisions in the years to come. Eventually, we predict that Kagan will make a fine justice for the liberals, siding with them on a vast majority of cases. But for the next three to five years, many liberals may be left to wonder what the court could have done if they had pushed for a judge that wouldn’t have had to recuse herself for half the cases put before her.

Only time will tell.

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