WASHINGTON (AP) — Justice Elena Kagan’s leather-backed chair was empty last week for the 26th and final time this term while the other Supreme Court justices listened to arguments in an obscure dispute between the government and an Indian tribe.
When President Barack Obama nominated Kagan for the Supreme Court last year, some court observers worried that her work as solicitor general would force her from enough cases to pose a serious problem for the high court.
After all, there is nothing worse for a petitioner than a meaningless 4-4 vote after expending all the effort that goes into winning a precious spot on the court’s calendar and presenting arguments to the justices.
Tie votes leave the lower court ruling in place but set no national precedent.
So far, though, Kagan’s absence has been important only once in 19 cases the court has decided without her.
A lawsuit about Costco’s sale of Swiss-made Omega watches at a steep discount ended up 4-4, leaving unresolved an issue about rules that apply to so-called gray market goods that are purchased abroad, then imported and resold without the permission of the manufacturer.
In the other 18 cases, there occasionally have been as many as two dissenting votes, but more often none at all, so Kagan’s absence didn’t prevent reaching a decision.
Of the remaining undecided cases that do not include her, the most important ones concern Arizona’s employer sanctions law for knowingly hiring undocumented workers and the government’s use of a federal law intended to ensure the presence of witnesses to detain terrorism suspects.
Kagan said from the outset that removing herself from cases in which she had taken part at the Justice Department would be a short-term problem that would dissipate fairly quickly.
She has been out of 26 of the term’s 78 arguments so far, but has missed just six of the 37 cases argued this year.
The court, with Kagan, will hear the final four cases of its term next week.
The decision to stay out of a case is a justice’s alone to make, guided by a federal law that bars judges from hearing a case because they owned stock in an affected company, had a relative involved in some way or had participated in the case either as a lawyer or judge.
The court’s consideration of two big issues — health care and gay marriage — that appear headed the justices’ way soon could be significantly affected if Kagan were to sit out.
It is by no means certain that she would step aside from either of those.
She already has taken part in the court’s denial of a health care appeal, but that case turned on procedural issues, not the substance of Obama’s health care overhaul.
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