Washington Elena Kagan’s nomination to the Supreme Court has complicated the government’s effort to force the tobacco industry to pay nearly $300 billion.
If confirmed by the Senate as a justice, Kagan would have to sit out high court review of the government’s decade-old racketeering lawsuit against cigarette makers. That’s because she has taken sides as solicitor general, signing the Obama administration’s Supreme Court brief — an automatic disqualifier.
Kagan is expected to step aside from 11 of the 24 cases the court has agreed to hear beginning in October.
Without her, the government and anti-tobacco advocates could find it difficult, if not impossible, to find a fifth vote to seek $280 billion of past tobacco profits and $14 billion for a campaign to curb smoking.
The justices are expected to consider whether to take up the tobacco lawsuit at their private conference on June 24. If they decide to go ahead, they would hear argument in the fall or winter.
A justice’s decision not to participate in a case, or a recusal, can have a dramatic effect. The court has split 4-4 on occasions when justices did not take part in a case because they owned stock in an affected company, had a relative involved or had participated in the case as a lawyer or judge. A 4-4 outcome leaves the lower court ruling in place.
Kagan might have to excuse herself from two to three dozen cases over the next few years. When Thurgood Marshall moved to the court from solicitor general in 1967, he did not take part in a majority of court cases in his first term, said Thomas Goldstein, a Washington lawyer and Supreme Court expert.
Kagan won’t face as many recusals as Marshall because she served for a shorter time as solicitor general, Goldstein said. But her absence could affect several cases. It won’t be known for some time whether she did enough legal work defending President Barack Obama’s health care legislation to require her to step aside if that issue comes to the Supreme Court.
Appeals in civil lawsuits over anti-terror policies begun in the Bush administration and, in some cases, continued under Obama, could be affected.
The federal appeals court in Washington recently limited the rights of detainees at the U.S. base in Bagram, Afghanistan, to use federal courts to challenge their detention. Justice John Paul Stevens, whom Kagan would replace, was part of a bare five-justice majority that sided with detainees at the U.S. base at Guantanamo Bay, Cuba. Because she signed the government’s briefs in the appeals court, Kagan would not be part of the high court’s consideration of the case.
The same consideration probably will doom the high court hopes of Maher Arar, the Canadian engineer mistakenly labeled a Muslim extremist. He was detained by U.S. authorities when he tried to change planes at Kennedy Airport in New York and sent to Syria, where he claims he was tortured.
The court could say as early as today whether it will hear Arar’s appeal of a ruling against him by the federal appeals court in New York.