Kagan Presence to Be Felt by Her Absence in First Court Term

Elena Kagan may make her mark in her first U.S. Supreme Court term less by her presence than by her absence.

Kagan has disqualified herself in 20 of the 38 cases on the court’s calendar because she took part in the litigation as U.S. solicitor general. The 20 include some top business cases: a fight over sanctions on employers for hiring illegal aliens, a clash between manufacturers and discount stores over the multibillion-dollar “gray market” in imports and disputes over consumer suits against automakers and drug companies.

In each case, Kagan’s absence creates the prospect of an evenly divided court, an outcome that would leave the lower court ruling intact without setting a nationwide precedent, Bloomberg Businessweek reports in its Sept. 27 issue. The term starts Oct. 4.

“It’s potentially a big deal” in those cases, said Roy Englert, a Washington appellate lawyer who will argue in the import case on behalf of Costco Wholesale Corp., the largest U.S. warehouse club. “You could have a 4-4 affirmance that will be satisfying to no one.”

That may hurt the U.S. Chamber of Commerce in its bid to overturn an Arizona law that threatens businesses with revocation of their corporate charter if they hire illegal aliens. A federal appeals court upheld the measure, also being challenged by labor and civil rights groups. They say the law infringes on Congress’s exclusive authority to regulate immigration.

Photographer: J. Scott Applewhite/Pool via Bloomberg

Elena Kagan is sworn in as a Supreme Court justice. Close

Elena Kagan is sworn in as a Supreme Court justice.

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Photographer: J. Scott Applewhite/Pool via Bloomberg

Elena Kagan is sworn in as a Supreme Court justice.

Alien Employment Laws

“I’m still hoping that our argument is strong enough that it won’t split 4-4, but losing Kagan complicates the case,” said Carter Phillips, a Washington appellate attorney who represents the business trade group. Should the court muster a five-justice majority, the case could affect alien employment laws in dozens of states and the separate Arizona law that tasks local police with detaining undocumented immigrants.

In the drug and auto cases, Kagan’s absence may benefit businesses, depriving consumers of the fifth vote they need to revive their suits. In each case, a lower court said federal law insulates manufacturers from product-liability suits that would impose stricter requirements as a matter of state law.

The drug case involves two parents seeking to sue Pfizer Inc.’s Wyeth unit over a vaccine they blame for their daughter’s seizure disorder and mental impairment. In the auto case, the family of an accident victim claims Mazda Motor Corp. should have installed a better seatbelt in a 1993 MPV minivan.

Kagan’s recusals will be all the more important for consumer advocates because her predecessor, retired Justice John Paul Stevens, tended to welcome those types of claims, rejecting arguments that they were preempted by federal law.

‘Some Trepidation’

“The plaintiff’s tort bar must be entering the term with some trepidation,” Maureen Mahoney, a Washington appellate lawyer who represents Mazda, said at a briefing this week sponsored by the Chamber of Commerce. “They’ve really lost their champion.”

Consumer advocates are counting on Kagan ultimately to adopt an approach similar to Stevens’s. “I’d rather have her there,” says Public Citizen’s Allison Zieve, speaking about the vaccine case. “That’s one where we expect she’ll be missed.”

In the import case, retailers may be better off without Kagan, even though they need five votes to overturn a ruling favoring manufacturers.

The dispute turns on efforts by discounters to exploit the lower overseas prices for some consumer goods by buying products abroad and importing them for sale in U.S. stores. As solicitor general, Kagan argued for the Obama administration in favor of a ruling letting manufacturers use the copyrights on their products to block the discount chains.

Employment Bias Cases

Kagan also will be absent from three employment discrimination arguments. In each case, the employer won at the appeals court level, so the workers will have to win five of the eight remaining votes on the often closely divided court.

“The employees are going to have to get at least two of the conservative votes,” Michael Gottesman, a Georgetown University law school professor, said at a briefing at the school in Washington.

Kagan will take part in two high-profile free-speech cases, including one with business implications. In that case, the court will decide the constitutionality of a California law that prohibits sales of violent video games to minors. Business groups including the Chamber of Commerce are asking the court to strike down the law.

The justices also will consider whether the Constitution protects anti-gay activists who staged a protest at the funeral of a Marine killed in Iraq and brought signs declaring that God hates homosexuals and America.

Wal-Mart Dispute

Kagan probably also will take part should the court accept a Wal-Mart Stores Inc. appeal that aims to stop female employees from suing on behalf of as many as 1.5 million women in what would be the largest-ever gender-bias suit against a U.S. private employer. The justices may say by late November whether they will hear the case.

“I’ll be shocked if the court doesn’t take this case,” said Englert, who plans to file a brief on behalf of Intel Corp. backing Wal-Mart. “The case really is of huge significance.”

Kagan, 50, probably will take part in more cases next year during the second half of the nine-month term, said Tom Goldstein, whose Scotusblog website tracks the court. And even when her recusal causes a 4-4 split, she might be able to consider the issue -- and resolve the divide -- in a later case. “In the sort of broad arc, it’s not that big a deal,” Englert said.

Still, on a court that often cleaves down the center, with Justice Anthony Kennedy casting the deciding vote, Kagan’s empty chair will be filled with significance in the coming months.

“Not having Kagan shifts the middle of the court from Kennedy to who knows,” Phillips said. “That can make a huge difference in some cases.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.

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