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Supreme Court Justice Elena Kagan’s prior position as U.S. solicitor general continues to prompt her to recuse herself in individual cases as she begins her second term on the Court. On the two orders lists issued by the Court since the beginning of the new term Oct. 3, Kagan bowed out of Court action in 66 cases – all of them procedural motions or denials of review. That brings the total number of her recusals since joining the Court last term to 337, a search of the Court’s online docket reveals. The number may sound high in the abstract, but less so when compared to the overall docket. Last term, the Court disposed of more than 7,800 cases. In public appearances, Kagan has predicted that her recusals would taper off as the cases in which she was involved as solicitor general worked their way through the appeals process. Kagan was solicitor general from March 19, 2009 to May 17, 2010. The fact that her recusals have continued into her second term highlights the lesser-known part of the job of solicitor general: reviewing and signing off on recommendations by local U.S. attorneys and executive branch agencies on whether to appeal district court rulings. Those early-stage actions have resulted in her recusal long after they were made. Despite concerns expressed by critics, Kagan’s recusals have not affected many of the cases in which the Court has granted review and issued rulings. Kagan stayed out of 27 of the 86 cases argued last term, and only two of those cases resulted in a 4-4 tie – which means the lower court ruling stands. So far this term, Kagan has indicates she is sitting out of only two cases in which the Court has scheduled argument: Golan v. Holder, a key copyright case argued Oct. 5, and FAA v. Hooper, a Privacy Act case set for argument Nov. 30. Other recusal actions since the term began: • Justice Samuel Alito Jr. announced on Oct. 3 he took no part in granting a motion in an antitrust dispute, Moundridge Kansas v. Exxon Mobil Corp. In his most recent financial disclosure, Alito reported he owned between $50,001 and $100,000 in Exxon Mobil stock. • Also on Oct. 3, both Chief Justice John Roberts Jr. and Justice Stephen Breyer recused in the denial of review in Farina v. Nokia Inc., which involves the health risks of cellular phones. Roberts reports owning between $15,001 and $50,000 in Nokia stock, according to his 2010 for. Breyer reported owning the same amount, though he indicated he sold part of the stock in 2010. • Breyer also recused on Oct. 3 in the denial of certiorari in National Council of Bar Examiners v. Enyart, an Americans With Disabilities Act case brought by a blind law student challenging the way in which the multistate bar exam is administered. It was one of several cases in which Breyer recused because his brother Charles, a judge on the U.S. District Court for the District of Northern California, ruled at the trial level. • Roberts recused Oct 3, in denial of review in Shum v. Intel Corp., a patent dispute. Roberts has reported owning up to $100,000 in Intel stock. • A foreclosure dispute, Gomes v. Countrywide Home Loans, was denied review Oct. 11 with Roberts recusing. Though he does not appear to own stock in Bank of America, which took over Countrywide in 2008, Roberts does report owning up to $15,000 of stock in Freddie Mac. Tony Mauro can be contacted at [email protected].

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