Monday, November 13, 2017

Justice Kagan Recuses Herself in Jennings v. Rodriguez

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The saga of Jennings v. Rodriguez, an immigrant detention case that has been languishing in the Supreme Court for two Terms, has taken but another bizarre twist.  Unable to reach a decision after the death of Justice Scalia last Term, the Court ordered re-argument in the case, which was held in the first week of the new Term

Amy Howe on SCOTUSBlog reports that the fate of the 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, the clerk of the Supreme Court indicated that Justice 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 Justice 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 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.


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