Kagan's conflicts will keep her from ruling on many cases

McClatchy NewspapersOctober 1, 2010 

WASHINGTON — The newest Supreme Court justice will be missing in action during much of the court's historic term that starts Monday, Oct. 4.

From video violence to immigration enforcement, the court's 2010-2011 term will confront some of the nation's toughest controversies. For Justice Elena Kagan, however, the nine-month session will be a start-and-stop affair. For everyone else, this could prove consequential.

Because of her work as the Obama administration's former solicitor general, however, Kagan already has recused herself from at least 21 of the 53 cases set for hearing so far. Her periodic judicial leave-taking starts one hour into the term Monday, and will continue past December.

"This changes the ballgame so much," observed attorney Roy Englert, who has argued numerous cases before the Supreme Court. "It's immensely frustrating when the court operates that way."

When she's present, Kagan will be making history. For the first time, the Supreme Court has three women on the bench. The 50-year-old Kagan replaced the 90-year-old John Paul Stevens, who retired in June.

Kagan is accustomed to being a pioneer, after serving as the first female dean of Harvard Law School and first female solicitor general. Jurisprudentially, though, many expect her to follow in the moderately left-leaning footsteps of Stevens.

"The conventional wisdom is, Justice Kagan replacing Justice Stevens may not make much (ideological) difference," noted attorney Michael Carvin, who has likewise argued numerous cases before the Supreme Court.

When she's absent because of a recusal, Kagan will leave behind the potential for a 4-4 split. In a tie, the lower court's decision is automatically upheld and the Supreme Court doesn't clarify the law.

Last year, the Supreme Court divided on a 5-4 margin in 16 of the 72 cases decided on the merits. Because close calls are so common, there's a good chance a single recusal could prove significant.

At 11 a.m. Monday, for instance, the court will consider a challenge by Texas inmate Carlos Rashad Gould of one aspect of his mandatory minimum prison sentence. On Tuesday, the court will consider a challenge by California-based National Aeronautics and Space Administration engineers of a system of aggressive background checks.

Kagan recused herself from both cases. This means the NASA engineers need only four votes to prevail in their challenge to the background checks, because they won at the 9th Circuit Court of Appeals. It also means Gould has a tougher time, because there are an easy four tough-on-crime votes on the court controlled by Republican appointees.

The court's docket for the term ending in June 2011 is not yet completely set, as another 25 or so cases will be scheduled in coming months. Some might prove among the most consequential, including one questioning whether 1.5 million women can join in a history making class lawsuit against Wal-Mart.

The often business-friendly court will decide later this year whether to add the Wal-Mart case.

"It's the 800-pound gorilla among the pending . . . petitions," Englert said.

Under the leadership of Chief Justice John Roberts Jr., the court already has scheduled some technical cases that are eye-glazing to most but important to business. Other cases target relatively small but highly motivated audiences.

The University of Texas, Medical University of South Carolina and the University of Southern California, for instance, are all supporting the famed Mayo Clinic's challenge to a Treasury Department decision excluding medical residents from a tax break granted to students.

Still other cases capture broader attention.

California, for instance, will be defending in early November the state's 2005 ban on the sale of violent video games to unaccompanied minors. Supporters call the state's law an important safeguard, while skeptics say it violates First Amendment free speech protections.

"This would be a major, major upheaval of the law if the court upholds the statute," said attorney Maureen Mahoney, who frequently appears before the high court. "If you can prohibit sales to minors in (video games) because of violence, presumably you can do it in other areas, like literature."

The case has cleaved states nearly down the middle. Eleven states including Texas have filed a brief supporting California's video violence law, while nine states including Washington have filed a brief supporting the video game industry.

The court hasn't yet added some of the other incendiary issues that have lit up past terms, including national security detentions, affirmative action, abortion and campaign finance restrictions. Some cases, though, do come with serious political baggage.

Justices, for instance, will be considering a challenge to an Arizona law that revokes business licenses of employers caught hiring illegal immigrants. The case is important not only for Arizona, but also for other states trying to control illegal immigration.

"(The law) reflects rising frustration with the United States Congress's failure to enact comprehensive immigration reform," the 9th Circuit Court of Appeals noted in upholding the law.

Kagan, however, won't participate. She recused herself from the case.

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