Kagan’s recusals — potential barrier to pro-gay rulings
Elena Kagan
At first glance, it might draw a yawn: Elena Kagan, the U.S. Supreme Court’s newest member, has recused herself from some cases that are coming before the court. But have a cup of coffee and ruminate for a few minutes over this list of cases that could very well be before the nation’s highest court within a very few years:
Perry v. Schwarzenegger, Gill v. Office of Personnel Management, Massachusetts v. Health and Human Services, Log Cabin Republicans v. U.S., and Witt v. U.S.
If Kagan recuses herself from any of these cases, the probability for a tie is the best the LGBT community can hope for in any of these cases. Rather than pinning hopes on Justice Anthony Kennedy to serve as a swing vote to victory, pro-gay attorneys will be desperate to persuade Kennedy in order to maintain a status quo.
When there’s a tie in the Supreme Court, the lower court ruling stands but applies only to that federal circuit.
So, if the 9th Circuit agrees with District Court Judge Vaughn Walker that California’s same-sex marriage ban is unconstitutional and the Yes on 8 supporters of Proposition 8 appeal to the Supreme Court, the best gay civil rights supporters could hope for—given the current ideological make-up of the court—is to preserve the 9th Circuit ruling for the nine 9th Circuit states.
On the other hand, if the 9th Circuit should disagree with Walker’s ruling, perhaps the worst outcome would likely be that banning same-sex marriage would be considered constitutional in only those nine states.
Kagan, and other justice, also have the option of recusing themselves from votes about whether to take a case for appeal. It takes four justices to agree to an appeal before the Supreme Court will hear it. So Kagan’s vote is also critical to whether the high court will even hear a case brought by a pro-gay advocate.
The number of Kagan recusals for this term has gained notice in several law-oriented blogs. As the Blog of the Legal Times (BLT) noted September 10, Kagan has, thus far, recused herself from 21 of the court’s current 40 cases for the session that begins October 4.
As BLT noted, Kagan said during her confirmation hearing this summer that she would recuse herself from any case in which she “personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position.”
The BLT says the recusals seem to suggest Kagan has made “a determination that her participation at earlier stages [in litigation]—even where her office [as U.S. Solicitor General] did not file a brief—required her to step aside.”
So far, no gay-related case is among the 21 Kagan has recused herself from. But from testimony during her confirmation hearing and elsewhere, one might surmise that Kagan could well decide to recuse herself from the two Defense of Marriage Act (DOMA) cases in Boston and the Don’t Ask Don’t Tell (DADT) case Witt v. U.S. In response to a question during her confirmation hearing, Kagan said she had not been a decision-maker on the DOMA cases because the Solicitor General’s office does not get involved in cases until they reach the federal appeals level. The two DOMA cases were in the district court level during Kagan’s tenure as Solicitor General.
But Kagan acknowledged, during her confirmation hearing, that she participated in discussions on whether to appeal the preliminary ruling in Witt.
For the current term, Kagan has not recused herself from Snyder v. Phelps, a case in which the court is being asked whether a protester has a First Amendment right to use a private funeral service as a staging ground for his or her hate speech against gays.
The family of Matthew Snyder, a Marine killed in Iraq, is bringing their appeal during the court’s first week in session. The Snyders say that the Westboro, Kansas, anti-gay group led by Fred Phelps violated their right to privacy when it held signs saying such things as “God Hates Fags” at their son’s funeral. (There was never any information or suggestion that Matthew Snyder was gay.)
The 4th Circuit U.S. Court of Appeals ruled that Phelps’ anti-gay messages—on placards and a website—are protected speech. The fact that the high court decided to hear the case indicates that at least four of the nine justices believe that ruling may have been in error. The case was accepted for review before Kagan joined the court. It is slated for oral argument on October 6.
There’s nothing in this column that suggests Justice Kagan would recuse herself from any of the cases involving Prop 8, DOMA or DADT. She may have discussed whether or not to appeal Witt, but there is nothing here to suggest that she either discussed the merits of the case or expressed an opinion about how to proceed. She could recuse herself out of an overabundance of caution, but there are sitting members of the Court who have heard cases with conflicts of interest some would argue are far more egregious than a conversation.
“One might surmise…”? “Kagan could well decide …”? Those statements are hardly the foundation upon which to make the bold assertion that pending cases SCOTUS may or may not hear hang in the balance of Justice Kagan’s decision whether or not to recuse herself. Gill and Perry weren’t even in her pipeline as Solicitor General.
Why create panic and fear about an issue that doesn’t exist? The 9th Circuit could decide the Defendants in Perry don’t have standing to appeal the case, an issue raised by Judge Walker, in which case there would be nothing to appeal to SCOTUS. Well, they could appeal the issue of standing, and then it would go back to the 9th circuit. However, where there may be debate over constitutional issues related to LGBTQ issues, matters pertaining to standing are pretty well established.
Witt & Gill are headed to SCOTUS. Perry? Maybe. But, on all accounts, speculation about Justice Kagan bowing out and creating a “tie” on the “vote” does nothing to inform our community or to empower us. You’ve created yet another reason for LGBT people to see themselves as helpless victims lacking any ability to control the outcome of our lives. It’s up to Kagan, Obama, the Court, the States, the right-wing, the tea party. Everyone decides our fate but us.