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Justice Kagan’s Recusals

Yesterday the U.S. Supreme Court granted 14 new cases.  (Discussion of all 14 cases can be found on SCOTUSblog.) Justice Elena Kagan, the most recent addition to the high court, has recused herself from four of the cases, for a total of 25 cases she will not take part in.  This is not terribly surprising—in her role as Solicitor General she was involved in many of the cases that are slated to come up before the court.  Several months ago, before she was appointed, Ed Whelan of the National Review Online looked at the recusal statistics of Thurgood Marshall, the last Solicitor General appointed to the court, and found that he had to bow out of more than half of the cases heard during his first term.  So this number of recusals is neither unexpected nor unprecedented. But it does alter the dynamics of the court.  With Justice Kagan bowing out, nearly half of the cases coming up to the docket this term have the possibility of ending in a tie.  In the case of a tie, the decision of the lower court will stand.

A month ago the Washington Post ran an article about a suggestion from Senator Patrick Leahy and former U.S. Supreme Court Justice John Paul Stevens that in the event of a recusal a former member of the Court could step in on that particular case.  Leahy feels the plan would both address the tie issue, and make it easier for Justices to recuse themselves.  What do you think?  Do we need a contingency plan in the case of recusal?  If so, is this a good one?


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