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Whole Lotta Recusin' Goin' On

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With apologies to Jerry Lee Lewis, there was a whole lotta recusin' goin' on at the US Supreme Court in this morning's orders list.

In the previous list of May 2, there were only six recusals.  There were four federal cases in which former SG Kagan was recused, a common and expected occurrence during her first year after that transition.  There were also two Second Circuit cases in which sophomore Justice Sotomayor was recused, also expected.

Today, in contrast, there were thirteen recusals.  There are eight cases in which the United States or a federal official is a party, with Justice Kagan recused, plus one Second Circuit case, with Justice Sotomayor recused.  That is a bump from the previous three lists, but within normal variation.  On top of that, though, Chief Justice Roberts is recused in three cases and Justice Kennedy in one.
One of the three is the suit filed by professional pain in the derriere Michael Newdow, who is appalled by the practice of Presidents adding the words "so help me, God" to the oath and has nothing better to do than file lawsuits about such matters.  The first named respondent is the man who administered the oath, so that one is pretty obvious.

But why is the Chief recused from Kinder v. Allied Interstate, No. 10-1089 or Mediostream v. Acer America Corp., No. 10-1090?  Why is Justice Kennedy recused from Aquino v. Suiza Dairy, No. 10-74?  Possibly there are some personal connections here.

Between the bookends of cases that clearly call for recusal and cases that clearly do not, there is a gray zone where the Justices make their own call, with no real mode of review.  There has been some public criticism, and it is possible that they are turning up the sensitivity knob a shade, recusing in more gray zone cases.  It's way too early to declare a trend, but something to keep an eye on.

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