Supreme Court starts new term with Elena Kagan on bench

Reporting from Washington —  The Supreme Court opened its new term Monday with new Justice Elena Kagan — but she was present for only one of the two cases being heard.

Throughout the fall, the pattern will be much the same. Kagan will be deciding about half as many cases as her colleagues, the result of her previous job as the government’s chief lawyer before the high court.

As the U.S. solicitor general, she decided which federal cases would be appealed. Now she is obliged to step aside, or recuse herself, in all of those cases in which she played a role.

The ninth justice votes last in the court’s private conference, and Kagan is the tiebreaker. But the court will often be without its tiebreaker for the first months of this term, and the justices could find themselves deadlocked and unable to rule in several major cases.

The cases include the closely watched dispute over Arizona’s crackdown on employers who hire illegal immigrants. A 2007 law threatens to strip such businesses of their licenses to operate if they knowingly hire illegal workers.

The U.S. Chamber of Commerce and the American Civil Liberties Union challenged the state law and argued that only the federal government can enforce immigration rules. The Obama administration agreed in May shortly after the president nominated Kagan for the high court.

Though Kagan did not sign the government brief, she nonetheless said she would not participate in the case when it is heard in December. If the court splits 4 to 4, the Arizona law will stand, because it was upheld last year by the U.S. 9th Circuit Court of Appeals.

On Tuesday, the court will hear three cases, and Kagan will be absent for all three. They include a privacy case to decide whether NASA may require scientists and other contract workers at the Jet Propulsion Laboratory in La Canada Flintridge to submit to background checks and answer questions about their private lives.

Kagan will help decide this term’s major free-speech disputes involving funeral protests and video games. She could also be a tiebreaker in a death penalty case from Texas where an inmate is seeking DNA testing of crime scene evidence. She will also participate in a church-state dispute from Arizona to decide whether the state can give $500 tax credits to those who help pay tuition of students in religious schools.

Her absence is not likely to be felt in many of the routine federal cases involving matters such as taxes, contracting or criminal sentencing. Rarely do the justices split evenly on such issues.

On Monday, Kagan got a first glimpse of the mundane aspects of her new job. In her first case, the justices were called upon to decide whether a bankrupt Nevada man could take a $471-a-month allowance for a car payment, even though he owned a 2004 Toyota Camry and had no car payment.

Kagan asked six questions of the lawyers in her distinctive New York accent, as many as any of her colleagues.

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Jim Oliphant in Washington contributed to this report.