July 9, 2012
By Jacob Combs
H/t to Kathleen for posting this in Quick Hits
Over on her blog Hunter of Justice, Georgetown law professor Nan Hunter has an analysis of the Department of Justice’s unexpected move last week asking the Supreme Court to take up the California DOMA case Golinski v. OPM before any decision is made at the appellate court level. The administration also recently filed for Supreme Court review of the consolidated Massachusetts DOMA case, in which the First Circuit unanimously declared the law unconstitutional.
In the briefing requesting certiorari in Golinski, the Justice Department wrote that the case addresses matters ”of exceptional public importance and call for definitive and timely resolution.” But Hunter, reading between the lines, thinks there is another reason the Justice Department would like to see Golinski taken up by the Supreme Court either concurrently or in a consolidated case with the Massachusetts proceeding: the possibility that Justice Kagan would recuse herself from any DOMA decision in the Massachusetts case.
Once again, this is an exercise in Supreme Court prophesizing, but as Hunter wrote in an earlier post regarding the First Circuit’s decision in Gill v. OPM, “When Justice Kagan was Solicitor General, she was almost certainly involved in Justice Department decision-making about whether and how it should defend DoMA, a federal law. Assuming that she was, she will have to recuse herself from any participation in Massachusetts v. HHS when it reaches the Supreme Court.” Since recusals only pertain to the specific case at hand and not the wider legal issue, Kagan would be under no obligation to recuse herself from Golinski, which was argued after her nomination to the high court and which she therefore likely had no involvement in.
One important caveat to all this, of course, is the fact that Supreme Court recusal policy is relatively murky. It is up to the individual justices themselves to decide whether or not a recusal is appropriate, and of course there is no higher court to appeal to for a recusal. Therefore, if Justice Kagan decides that her work in the Solicitor General’s office on DOMA does not merit recusing herself from the case (as she did in the health care proceedings), she won’t do so.
For the sake of argument, if Justice Kagan were to step down from the Gill case, the most likely outcome would be a 4-4 split decision with Justice Kennedy joining the three remaining liberal justices to strike DOMA down and the four conservatives voting to uphold it. Most court watchers believe that Justice Kennedy is likely to vote to strike DOMA down, considering the fact that his libertarian leanings make such a law impinging personal liberties particularly odious to him (indeed, his vote to strike down the Affordable Care Act shows just how strong his feelings towards individual liberties are). Because of his vote to uphold the ACA, there has been some speculation that Chief Justice John Roberts will join the liberals in striking DOMA down, but given his past voting record, there is no clear evidence that he would do so.
A 4-4 tie would be good news, but not great news. On the positive side, the split would uphold the First Circuit opinion, meaning that DOMA would be effectively struck down in the First Circuit (that is, Puerto Rico and most of New England). Unfortunately, such a decision would not be binding upon the rest of the United States. Of course, any future DOMA case that came to the Supreme Court would likely be heard by Justice Kagan, who would probably then vote with the Kennedy/liberal alliance that might strike DOMA down in the Massachusetts case. At that point, DOMA would finally be history across the country.
Golinski, of course, is the DOMA case that is furthest along in the court system behind Massachusetts, which has already been presented to the Supreme Court for review. Golinski makes the obvious choice for a second case to clarify a 4-4 split in Massachusetts, so Hunter’s argument that the Justice Department’s request to expedite Golinski is an attempt to head off the uncertainty of a 4-4 tie is based on sound logic.
To do some further tea leaf reading, the request to move Golinski straight to the Supreme Court most likely reflects the view of the Justice Department that the likelihood of success for the administration on a DOMA case at the Supreme Court is high, a view which I believe is correct. DOMA is standing on its last legs, and it is time for the high court to declare once and for all that the law is discriminatory. If an expedited Golinski means that Justice Kagan can help make that a reality in a way that she cannot in Massachusetts, the Justice Department is pursuing a long-sighted and clever strategy indeed.