Kagan confirmation could affect major tobacco case

If confirmed by the Senate as a justice, Kagan would have to sit out the high court’s 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.

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 antitobacco 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, read completely in tobacco news.

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 arguments 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-to-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.

Kagan might eventually have to recuse 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 specialist.

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 he did, Goldstein said. In addition, some of Marshall’s recusals related to his service on the federal appeals court in New York.

But a Kagan 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 antiterror policies begun in the Bush administration and, in some cases, continued under Obama, also could be affected.

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