Legal Commentary

Kagan?s Recusals

By Jonathan H. Adler

This week, Justice Elena Kagan ?quietly recused herself? from ten more cases to be heard by the Supreme Court during the OT 2010 term, BLT reports. This means Justice Kagan has now recused in twenty-one cases, just over half of the forty cases accepted by the Court for the coming term.  The high recusal rate stems from her work in the Solicitor General?s office.  She will need to recuse far less in subsequent terms.

Some readers may recall the debate between Tom Goldstein and Ed Whelan over Kagan?s potential recusal obligations during the broader confirmation debate. Goldstein initially predicted that a Justice Kagan would have to recuse in 13 cases during her first term, an estimate he subsequently raised to 15, or between one-fifth and one-sixth of the total merits docket.  Whelan argued the total number would be much higher,  pointing to the experience of Justice Thurgood Marshall, who had to recuse in over 50 percent of the Court?s cases in his first term due to his prior service as Solicitor General.   For those keeping score, Kagan appears to be on pace to hit Whelan?s prediction, but only if her rate of recusal remains the same as the Court accepts another thirty-or-so cases in the coming months.

Full post as published by The Volokh Conspiracy on September 10, 2010 (boomark / email).