Supreme Court Will Hear SB1070 Case, Justice Kagan Is Recused

In a brief order this morning, the Supreme Court announced that it will hear Arizona’s appeal of a lower court decision blocking much of its unconstitutional anti-immigrant law SB 1070:


The petition for a writ of certiorari is granted. Justice Kagan took no part in the consideration or decision of this petition.

The most interesting news here isn’t the fact that the Court took this case — with so many unconstitutional laws popping up in states with anti-immigrant governments, the Supreme Court owes the nation some clarity on whether it will permit these laws to stand. Rather, the most interesting revelation here is that Justice Kagan will not hear this case.

As a practical matter, Kagan’s recusal is unlikely to change the outcome of this lawsuit — at least in the short term. If all five of the Court’s conservatives join together to overrule the long line of Supreme Court precedent establishing that Arizona’s law is unconstitutional, then Kagan will change little by simply adding another vote to the dissent. By contrast, if the Court splits evenly, then the Court’s rules establish that the lower court’s decision will stand — meaning that SB 1070 remains under a preliminary injunction.

One thing today’s order should put to rest, however, is the ridiculous suggestion that Justice Kagan needs to recuse from the Affordable Care Act litigation. Since joining the Court, Justice Kagan has scrupulously avoided sitting on any case she worked on while Solicitor General — even though this took her off of dozens of cases. Today’s order shows that Kagan is no less attentive to her ethical obligations even when they arise in high profile cases that carry a great deal of political baggage for the president that appointed her.