Kagan would have to sit out some cases

It’s a simple matter of math: Elena Kagan’s nomination to the Supreme Court has complicated the government’s effort to force the tobacco industry to cough up nearly $300 billion.

If confirmed by the Senate as a justice, Miss Kagan would have to sit out high court review of the government’s decade-old racketeering lawsuit against cigarette makers. That’s because she already has taken sides as solicitor general, signing the Obama administration’s Supreme Court brief in the case - an automatic disqualifier.

Miss Kagan is expected to step aside from 11 of the 24 cases the court has so far 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 allow the government to seek $280 billion of past tobacco profits and $14 billion for a national 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, called a recusal, can have a dramatic effect on a nine-person court. The court has split 4-4 on several occasions in recent years when justices did not take part in 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.

A 4-4 outcome leaves the lower court ruling in place, creates no national precedent and generally is regarded as a waste of the court’s time.

Miss Kagan might eventually have to excuse herself from two to three dozen cases over the next few years. When Thurgood Marshall moved directly to the court from solicitor general in 1967, he did not take part in a majority of the cases the court heard in his first term, said Thomas Goldstein, a Washington lawyer and Supreme Court expert.

Miss Kagan won’t face as many recusals as Marshall because she served for a shorter time as solicitor general and stepped aside from those duties earlier than Marshall did, Mr. Goldstein said. In addition, some of Marshall’s recusals related to his service on the federal appeals court in New York.

But Miss Kagan’s anticipated absence could affect several important cases. It won’t be known for some time whether she did enough legal work defending President Obama’s health care legislation to require her to step aside if and when 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 Mr. 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 Miss Kagan would replace, was part of a bare five-justice majority that sided with detainees at the U.S. base at Guantanamo Bay, Cuba.

Again, because she signed the government’s briefs in the appeals court, Miss Kagan would not be part of the high court’s consideration of the Bagram case, and it is by no means clear that she would vote as Justice Stevens did.

The same consideration probably will doom the high court hopes of Maher Arar, the Canadian engineer who was mistakenly labeled a Muslim extremist, detained by U.S. authorities when he tried to change planes at Kennedy Airport in New York and sent to Syria. Mr. Arar claims he was tortured in Syria and wants to hold former Attorney General John Ashcroft and other officials liable for the decision to send him there.

The court could say as early as Monday whether it will hear Mr. Arar’s appeal of a ruling against him by the federal appeals court in New York. One consideration for the justices is that there probably would be only seven of them available to hear Mr. Arar’s case, meaning as few as four justices could hold sway.