Elena Kagan recuses herself from 25 of the first 51 Supreme Court cases

  Today Elena Kagan recused herself from 25 of the first 51 cases that will appear before the Supreme Court this session.

   Much was made by Republicans during her confirmation hearing as to whether she would recuse herself from any case brought to the Supreme Court which challenged the healthcare reform law. While she did not directly answer that question, she stated that she would recuse herself from any case in which she provided counsel to the president.

  Today she made good on that promise and while we still do not know if she will recuse herself from any healthcare reform challenges; and while we still do not know whether or not she provided council to Barack Obama regarding the healthcare reform legislation, the fact that she has recused herself from nearly half of this session’s Supreme Court cases brings an interesting twist to the cases being heard by the Supreme Court.

  At first glance it would appear that her recusal would not affect the court cases too much as there was probably still a five to four majority anyway, but where it gets interesting is when the Supreme Court deadlocks at four to four.

  In a four to four deadlock the lower court ruling will be upheld and a precedent would not be set. One of the cases where this could come into play is this immigration case:

 Chamber of Commerce v. Whiting, is an unusual alliance between business groups, civil liberties organizations and the federal government to overturn a law that allows the state to yank a business’s license for hiring undocumented workers.

 The U.S. Court of Appeals for the 9th Circuit upheld it, but the solicitor general’s office told the court that it intruded on the federal government’s exclusive authority on immigration laws.

  It appears to me as if there is the very likely chance that all cases from which Justice Kagan has recused herself will end up in a four to four deadlock; this will uphold the victor in the lower court. It seems that this will hurt any lower court decisions that were won by liberal courts as these cases could still be overturned by a five to three majority; and would also help cases won by conservative courts because of the same five to three majority.

 However precedent will still not have been set in any of these cases, so they will most likely be back in some form again. This is certainly going to make the current Supreme Court session rather interesting indeed.