Is Elena Kagan Taking Only Half Her Pay?

Former Solicitor General Elena Kagan, now a part-time Associate Justice of the Supreme Court, has already recused herself from half the cases the Court will decide this term. This means those cases are much more likely to favor the decision handed down by the lower court, since a tie favors the previous victor but doesn’t set precedent.

Is Elena Kagan taking a full salary for this half-time work? Tomorrow

Kagan will hear the first case argued before the court, then slip quietly through the burgundy velvet curtains behind the bench. She’ll be out of the action in all three cases : Tuesday. Her chair will be empty when the court returns next Tuesday and she’ll put in a half-day the next day.

Kagan’s old job as solicitor general – the "10th justice" – is initially making it hard to do her new job as the ninth justice.

Kagan, 50, has recused herself from 25 of the 51 cases the court has accepted so far this term, all as a result of her 14-month tenure as solicitor general, the government’s chief legal representative in the Supreme Court and the nation’s lower appellate courts.

Really, America deserves a full-time justice on the Supreme Court. At the very least, Elena Kagan only deserves a part-time salary, as she’s only serving part-time on the Court for her first year — or two.  . . .

Kagan is recusing herself from cases in which she had a role in drafting a brief for the Supreme Court, or when she was actively involved in a case in the lower courts. She took herself out of such deliberations when President Obama nominated her last May, so the pace of her recusals should slow as the court over the next few months completes the work of filling the term’s docket.

Senator Patrick Leahy has a solution to this divided Court with an absent member, but the GOP is unlikely to go along with it:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) filed legislation last month that would create such a system. As a result of a conversation with Stevens, Leahy proposes allowing a majority of the active justices to vote to designate a retired justice to fill-in for a recused justice.

With the current lineup of retired justices composed of Stevens, Sandra Day O’Connor and David H. Souter, it seems unlikely that Leahy’s conservative colleagues will jump to support him.

Justice Scalia could rectify that imbalance among retired Justices if he wishes, of course. As could Justice Thomas. Let’s create a retired bench of conservative SCOTI, gentlemen — make it easier for Senate GOPs to support Chairman Leahy’s proposal, okay?

[Photo under Fair Use: HarvardLawRecord via Flickr]

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