Kagan's recusals take her out of action in many of the Supreme Court's cases

Councilman · Oct 5, 2010

This is dangerous because her not being in place on this many cases could effect decisions because her not being there for this reason, if Kagan recuses herself from a case and the eight remaining justices are deadlocked 4-4 on what ever it is, the ruling by the last appellate court to hear the case before it got to the U.S. Supreme Court automatically stands.

The knowledge of this fact could actually be used as a tool to control cases that are expected to other wise be overturned.

I don't mean to create ant doubt but it did come to mind and she does know the system much better than I.

Just thinking out-loud so to speak. This could never happen, right?

washingtonpost.com
Kagan, 50, has recused herself from 25 of the 51 cases the court has accepted so far this term, all as a result of her 14-month tenure as solicitor general, the government's chief legal representative in the Supreme Court and the nation's lower appellate courts.

The recusals are one measure of how integral the "SG" is to the court's workings. Much of the court's caseload comes from challenges to federal statutes or government policies that the solicitor general must defend. The court also often asks for the government's view on whether a case is ripe for review.

Kagan is recusing herself from cases in which she had a role in drafting a brief for the Supreme Court, or when she was actively involved in a case in the lower courts. She took herself out of such deliberations when President Obama nominated her last May, so the pace of her recusals should slow as the court over the next few months completes the work of filling the term's docket.

Redress · Oct 5, 2010

So let me see if I understand this right: recusing herself from cases she has been involved in is somehow "dangerous"? I would argue that it is exactly the right thing for her to do, and that if she did not recuse herself, you would probably be up in arms over that.

Moot · Oct 5, 2010

The SCOTUS is a conservative majority court and consistently votes 5-4 in most cases. So if Kagen recuses herself then the vote will likely be 5-3 and won't make a bit of difference.

Councilman · Oct 5, 2010

Redress said:
So let me see if I understand this right: recusing herself from cases she has been involved in is somehow "dangerous"? I would argue that it is exactly the right thing for her to do, and that if she did not recuse herself, you would probably be up in arms over that.

Let me explain something when I said this could be dangerous I was talking about being put on the Court when someone had so many cases that are up for review,and depending on what those cases are about.

It is not inconceivable that someone who is "Machiavellian" in nature would appoint a specific person Judge who has a large number big cases being looked at for possible review by the Court to insure the right final ruling.

She may not be there for anything close to something like that but the whole thing is ripe for what came to mind.

After all politicians see things in systems that can be manipulated to advantage others may overlook because their minds are not in tune to do so.

I'm not accusing anyone of anything. I'm only making an observation and speculating something that happen not something that did.

Sorry for any confusion, I created.

Your Star · Oct 5, 2010

RightinNYC · Oct 6, 2010

This was common knowledge as of a year or two ago, so I'm not sure why it's making headlines now. Kagan had no choice in the matter, as she was expected to recuse herself from all cases she was involved with.

Moot said:
The SCOTUS is a conservative majority court and consistently votes 5-4 in most cases. So if Kagen recuses herself then the vote will likely be 5-3 and won't make a bit of difference.

This is incorrect.

Just 19% of decisions in the last term were 5-4. 47% were 9-0. Of the 16 cases that were 5-4, just 8 were split 5-4 in favor of the conservative majority.

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Stats-OT09-0707101.pdf

apdst · Oct 6, 2010

Redress said:
So let me see if I understand this right: recusing herself from cases she has been involved in is somehow "dangerous"? I would argue that it is exactly the right thing for her to do, and that if she did not recuse herself, you would probably be up in arms over that.

Shouldn't the smart people that are in charge of the government have foreseen that she would have to recuse herself from all those cases?

Deuce · Oct 6, 2010

Councilman said:
Let me explain something when I said this could be dangerous I was talking about being put on the Court when someone had so many cases that are up for review,and depending on what those cases are about.

It is not inconceivable that someone who is "Machiavellian" in nature would appoint a specific person Judge who has a large number big cases being looked at for possible review by the Court to insure the right final ruling.

She may not be there for anything close to something like that but the whole thing is ripe for what came to mind.

After all politicians see things in systems that can be manipulated to advantage others may overlook because their minds are not in tune to do so.

I'm not accusing anyone of anything. I'm only making an observation and speculating something that happen not something that did.

Sorry for any confusion, I created.

...because Obama, the appointer, really wanted one less liberal on the court during these particular cases?

Kandahar · Oct 6, 2010

Councilman said:
Let me explain something when I said this could be dangerous I was talking about being put on the Court when someone had so many cases that are up for review,and depending on what those cases are about.

Why? This will only be a problem for the first year until the Court finishes reviewing the current cases. She has her whole life ahead of her to make an impact on the Court.

Councilman said:
It is not inconceivable that someone who is "Machiavellian" in nature would appoint a specific person Judge who has a large number big cases being looked at for possible review by the Court to insure the right final ruling.

That doesn't make sense. Presumably she'd rule in ways FAVORABLE to the Obama Administration, so how the hell could he take advantage of her recusing herself?

Councilman said:
I'm not accusing anyone of anything. I'm only making an observation and speculating something that happen not something that did.

Sorry for any confusion, I created.

Do you think these conspiracy theories out before you post them here?

danarhea · Oct 6, 2010

Councilman said:
This is dangerous because her not being in place on this many cases could effect decisions because her not being there for this reason, if Kagan recuses herself from a case and the eight remaining justices are deadlocked 4-4 on what ever it is, the ruling by the last appellate court to hear the case before it got to the U.S. Supreme Court automatically stands.

The knowledge of this fact could actually be used as a tool to control cases that are expected to other wise be overturned.

I don't mean to create ant doubt but it did come to mind and she does know the system much better than I.

Just thinking out-loud so to speak. This could never happen, right?

This speaks to Kagan's integrity. And if she voted, it would be on the Liberal side. In some of those cases, what would have been 5-4 in favor of the Liberals on the bench becomes 4-4 in favor of Conservatives on the bench. My respect for Kagan has just gone up quite a few notches, since she chose to put ethics above politics, something that is very rarely seen these days.

Moot · Oct 7, 2010

RightinNYC said:
This was common knowledge as of a year or two ago, so I'm not sure why it's making headlines now. Kagan had no choice in the matter, as she was expected to recuse herself from all cases she was involved with.

This is incorrect.

Just 19% of decisions in the last term were 5-4. 47% were 9-0. Of the 16 cases that were 5-4, just 8 were split 5-4 in favor of the conservative majority.

http://www.scotusblog.com/wp-content/uploads/2010/07/Final-Stats-OT09-0707101.pdf

Oh your right, forgive me, I should have clarified that when the court isn't ruling along ideologial lines 5-4 such as in Gore v Bush, it overwhelmingly votes in favor of business against individuals.....

2008- "....The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history.
http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html

2009: "The U.S. Chamber of Commerce won at least a partial victory in 13 of the 16 cases in which it filed a brief during the court term that concluded in June. The business trade group has won at least half its cases every year for more than a decade...."
http://www.bloomberg.com/news/2010-...-s-supreme-court-has-a-pro-business-bias.html

2010: "For the fifth term under Chief Justice John G. Roberts, Jr., it can truly be said that the business of the high court is business. Following up on last term’s decision in Citizens United, which overturned a century of precedent by invalidating all restrictions on using corporate cash to influence election campaigns under the guise of protecting free speech (See: “The Supreme Court ruling on corporate political spending”), the high court is poised to lift a variety of restrictions on the pursuit of profits and eliminate the power of individuals to fight back....
US Supreme Court opens 2010 term with pro-corporate agenda

We asked Goldman whether the current court is as pro-business as it’s sometimes reputed to be. Goldman’s answer was unequivocal: No. “I don’t think it makes sense to talk about a pro-business or anti-business court,” she said. “Two-thirds of the business decisions from last term cut in favor of business interests, but the justices often do not divide along ideological lines in business cases...."
US Supreme Court opens 2010 term with pro-corporate agenda

Yeah, they just overwhelmingly vote in favor in corporations 2/3 of the time. I think its pretty obvious that all the SCOTUS judges were selected specifically for their favorablity to corporate interests first and their ideological leanings, second.

RightinNYC · Oct 7, 2010

Moot said:
Oh your right, forgive me, I should have clarified that when the court isn't ruling along ideologial lines 5-4 such as in Gore v Bush...

Nothing about that is a clarification. You made a claim that was blatantly false, got called out on it, and are now resorting to entirely unrelated claims about cases that I doubt you really understand.

it overwhelmingly votes in favor of business against individuals.....

2008- "....The chamber’s litigation center filed briefs in 15 cases and its side won in 13 of them — the highest percentage of victories in the center’s 30-year history.
http://www.nytimes.com/2008/03/16/ma...supreme-t.html

2009: "The U.S. Chamber of Commerce won at least a partial victory in 13 of the 16 cases in which it filed a brief during the court term that concluded in June. The business trade group has won at least half its cases every year for more than a decade...."
http://www.bloomberg.com/news/2010-1...ness-bias.html

Not sure why you think this means anything. Most groups choose to file amicus briefs in cases where they have a very good chance of winning. The fact that they win a disproportionate number of those cases is to be expected.

010: "For the fifth term under Chief Justice John G. Roberts, Jr., it can truly be said that the business of the high court is business. Following up on last term’s decision in Citizens United, which overturned a century of precedent by invalidating all restrictions on using corporate cash to influence election campaigns under the guise of protecting free speech (See: “The Supreme Court ruling on corporate political spending”), the high court is poised to lift a variety of restrictions on the pursuit of profits and eliminate the power of individuals to fight back....
US Supreme Court opens 2010 term with pro-corporate agenda

We asked Goldman whether the current court is as pro-business as it’s sometimes reputed to be. Goldman’s answer was unequivocal: No. “I don’t think it makes sense to talk about a pro-business or anti-business court,” she said. “Two-thirds of the business decisions from last term cut in favor of business interests, but the justices often do not divide along ideological lines in business cases...."
US Supreme Court opens 2010 term with pro-corporate agenda

Oh, well if the "World Socialist Web Site" says that the Roberts court is biased, it must be!

Moot · Oct 7, 2010

RightinNYC said:
Nothing about that is a clarification. You made a claim that was blatantly false, got called out on it, and are now resorting to entirely unrelated claims about cases that I doubt you really understand.

My point was that Kagan's vote probably wouldn't make a bit of difference in any of the cases she recused herself from. All you did was help prove me right while missing the point entirely. Thanks.

Not sure why you think this means anything. Most groups choose to file amicus briefs in cases where they have a very good chance of winning. The fact that they win a disproportionate number of those cases is to be expected.

I think it proves that the court is biased in favor of business over the little guy. The cases on their docket for the upcoming year will only help prove it when they vote in favor of the drug companies and AT&T. But we'll just have to wait see on that, now won't we?

Oh, well if the "World Socialist Web Site" says that the Roberts court is biased, it must be!

Did the WWS say anything different than the NYT or Bloomberg? Did they get their facts wrong? What? Apparently not, or you would have disputed the points made instead of the source, which makes your comment fallacious and totally irrelevant. So what else is new?

RightinNYC · Oct 7, 2010

Moot said:
My point was that Kagan's vote probably wouldn't make a bit of difference in any of the cases she recused herself from. All you did was help prove me right while missing the point entirely. Thanks.

Where did I say that her vote would have mattered or otherwise criticize her for recusing herself? As I noted above, this has been common knowledge since before she was even nominated.

You claimed that the court "consistently votes 5-4 in most cases." That's not correct.

I think it proves that the court is biased in favor of business over the little guy.

Then you don't really understand what I just said. Imagine that the ACLU picked 10 cases that it thought it would most likely win and filed amicus briefs for only those 10 cases. If their side won 8 of those cases, would that prove that the SC was biased in favor of the ACLU?

The cases on their docket for the upcoming year will only help prove it when they vote in favor of the drug companies and AT&T. But we'll just have to wait see on that, now won't we?

Can you explain the legal issues involved in any of those cases and discuss how you think the court should rule?

Did the WWS say anything different than the NYT or Bloomberg? Did they get their facts wrong? What? Apparently not, or you would have disputed the points made instead of the source, which makes your comment fallacious and totally irrelevant. So what else is new?

I'm not interested in trying to prove something that's largely unquantifiable to someone who isn't really interested in having a real debate about this.

Moot · Oct 7, 2010

RightinNYC said:
Where did I say that her vote would have mattered or otherwise criticize her for recusing herself? As I noted above, this has been common knowledge since before she was even nominated.

I give up, where did you?

You claimed that the court "consistently votes 5-4 in most cases." That's not correct.

Yes, and I asked you for forgiveness for my minor transgression. So whaddya gonna do now, sue me?

Then you don't really understand what I just said. Imagine that the ACLU picked 10 cases that it thought it would most likely win and filed amicus briefs for only those 10 cases. If their side won 8 of those cases, would that prove that the SC was biased in favor of the ACLU?

Well, why would the SCOTUS even take up such cases if they were such done deals that could have been handled by the lower courts? Is it because the lower court rulings failed to find precedent? Isn't that usually the case with civil and criminal law?

Can you explain the legal issues involved in any of those cases and discuss how you think the court should rule?

Yes, but it would be easier if you just read the WWC link I provided.

I'm not interested in trying to prove something that's largely unquantifiable to someone who isn't really interested in having a real debate about this.

Thats fine, because I consider someone's smarmy little insults to be more banter than "real" debate, anyway.

RightinNYC · Oct 7, 2010

Moot said:
I give up, where did you?

I didn't. That's the point.

Well, why would the SCOTUS even take up such cases if they were such done deals that could have been handled by the lower courts? Is it because the lower court rulings failed to find precedent? Isn't that usually the case with civil and criminal law?

The SC takes cases whenever it wants to clear up ambiguity in the law or resolve circuit splits. That does not mean that it is impossible (or even difficult) to predict how most cases will turn out. This is evident from the fact that the majority of cases are decided 9-0 or 8-1.

Yes, but it would be easier if you just read the WWC link I provided.

Nothing in that link even approached legal analysis. It was a bunch of two sentence summaries of cases followed by sweeping rhetoric about how the court is "pro-business."

Legal issues that make it to the SC are complex and full of nuance. They can rarely be boiled down to things like "pro-business" or "anti-business."

RightinNYC · Oct 7, 2010

Speaking of the "Roberts court is pro-business" meme...

http://www.debatepolitics.com/gener...theory-pro-business-court.html#post1059027844

Moot · Oct 7, 2010

RightinNYC said:
Speaking of the "Roberts court is pro-business" meme...

http://www.debatepolitics.com/gener...theory-pro-business-court.html#post1059027844

I posted the same Bloomberg article the blogger is referring to in your link. The article went on to say.....

Moot said:
2009: "The U.S. Chamber of Commerce won at least a partial victory in 13 of the 16 cases in which it filed a brief during the court term that concluded in June. The business trade group has won at least half its cases every year for more than a decade...."
http://www.bloomberg.com/news/2010-1...ness-bias.html

That paragraph alone refutes Justice Breyer's claim that the court isn't overwhelmingly "pro-business."

Redress · Oct 7, 2010

apdst said:
Shouldn't the smart people that are in charge of the government have foreseen that she would have to recuse herself from all those cases?

They surely did, and in fact it came up during her confirmation hearings. This is also something that will not last long, since there is a limited time before the cases she is involved in have passed through the system.

RightinNYC · Oct 7, 2010

Moot said:
I posted the same Bloomberg article the blogger is referring to in your link. The article went on to say.....

That paragraph alone refutes Justice Breyer's claim that the court isn't overwhelmingly "pro-business."

I've explained this twice, but you still don't seem to understand.

Most groups choose to file amicus briefs in cases where they have a very good chance of winning. The fact that they win a disproportionate number of those cases is to be expected.

Imagine that the ACLU picked 10 cases that it thought it would most likely win and filed amicus briefs for only those 10 cases. If their side won 8 of those cases, would that prove that the SC was biased in favor of the ACLU?

The fact that the CoC won most of the cases it chose to file amicus briefs for 1) does not prove that the court is "pro-business," and 2) especially doesn't prove that the court is more "pro-business" than in the past. This is straightforward logical reasoning.

Moot · Oct 8, 2010

RightinNYC said:
I've explained this twice, but you still don't seem to understand.

What you fail to understand is that your explaintions are merely your opinions that I happen to disagree with. Is that a problem for you?

The fact that the CoC won most of the cases it chose to file amicus briefs for 1) does not prove that the court is "pro-business," and 2) especially doesn't prove that the court is more "pro-business" than in the past. This is straightforward logical reasoning.

All cases that are represented by third parties, IE: special interest groups such as the ACLU, CoC, etc., or parties that have an interest in the outcome of a case can file an amicus brief. But to say that the judgement of the court is already predetermined by the mere filing of an amicus brief is pure nonsense. And no, your straightforward logical reasoning is not logical or straightforward at all. In fact, it rather looks like lazy subjective thinking aka word salad to make yourself appear more knowledgable than you really are. But in reality, you are no more an expert on these matters than I am. So lets stop the pretense shall we?

zip98053 · Oct 8, 2010

Councilman said:
Let me explain something when I said this could be dangerous I was talking about being put on the Court when someone had so many cases that are up for review,and depending on what those cases are about.

It is not inconceivable that someone who is "Machiavellian" in nature would appoint a specific person Judge who has a large number big cases being looked at for possible review by the Court to insure the right final ruling.

She may not be there for anything close to something like that but the whole thing is ripe for what came to mind.

After all politicians see things in systems that can be manipulated to advantage others may overlook because their minds are not in tune to do so.

I'm not accusing anyone of anything. I'm only making an observation and speculating something that happen not something that did.

Sorry for any confusion, I created.

I'm afraid I'm not able to figure out how someone who nominates a person for the SCOTUS would somehow gain an advantage by nominating someone who would recuse themselves. Wouldn't it just be easier to nominate someone who is likely to vote the way you want? I mean, a little paranoia is a healthy thing, but damn.

Kagan's recusals take her out of action in many of the Supreme Court's cases

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