The fate of a high-profile challenge to the long-term detention of immigrants facing deportation without a bond hearing appeared less certain tonight, with the announcement – made over a month after oral argument – that Justice Elena Kagan would no longer participate in the case. In a letter sent to lawyers for the two sides in Jennings v. Rodriguez, Scott Harris – the clerk of the Supreme Court – indicated that Kagan had learned only today that “while serving as Solicitor General, she authorized the filing of a pleading in an earlier phase” of the case.
This evening’s announcement was significant for two reasons. First, it raises the possibility that, with Kagan recused, the justices may not be able to reach a decision on the merits of the case. The justices first heard oral argument in the case in November of 2016, before Justice Neil Gorsuch was nominated and confirmed. But – presumably because they were deadlocked four to four, although there is no way to know for sure – the justices ordered reargument last summer. If the justices had hoped that Gorsuch could break the stalemate and allow them to resolve the case, Kagan’s absence could throw a wrench into the works.
Tonight’s letter also returns attention (no doubt, from the justices’ perspective, unwelcome) to the justices’ recusal practices and the procedures they use to identify potential conflicts. In January of this year, Harris announced that Chief Justice John Roberts would no longer participate in a patent case argued nearly a month earlier. Roberts had recently learned, Harris explained, that the petitioner in the case was owned by a company in which Roberts owned stock. And in 2016, Justice Stephen Breyer sat on the bench when the court heard oral argument in an energy case even though his wife owned stock in a Wisconsin company whose subsidiary was part of the case. Breyer only disclosed the conflict in response to questions from Bloomberg News, and his wife sold her shares.