Kagan’s work as a top government lawyer would affect tobacco case if she joins Supreme Court

Kagan confirmation would affect major tobacco case

WASHINGTON — It’s a simple matter of math: Elena Kagan’s nomination to the Supreme Court has complicated the government’s effort to force the tobacco industry to cough up nearly $300 billion.

If confirmed by the Senate as a justice, Kagan would have to sit out high court review of the government’s decade-old racketeering lawsuit against cigarette makers. That’s because she already has taken sides as solicitor general, signing the Obama administration’s Supreme Court brief in the case — an automatic disqualifier.

Kagan is expected to step aside from 11 of the 24 cases the court has so far agreed to hear beginning in October.

Without her, the government and anti-tobacco advocates could find it difficult, if not impossible, to find a fifth vote to allow the government to seek $280 billion of past tobacco profits and $14 billion for a national campaign to curb smoking.

The justices are expected to consider whether to take up the tobacco lawsuit at their private conference on June 24. If they decide to go ahead, they would hear argument in the fall or winter.

A justice’s decision not to participate in a case, called a recusal, can have a dramatic effect on a nine-person court. The court has split 4-4 on several occasions in recent years when justices did not take part in a case because they owned stock in an affected company, had a relative involved in some way or had participated in the case either as a lawyer or judge.

A 4-4 outcome leaves the lower court ruling in place, creates no national precedent and generally is regarded as a waste of the court’s time.

Kagan might eventually have to excuse herself from two to three dozen cases over the next few years. When Thurgood Marshall moved directly to the court from solicitor general in 1967, he did not take part in a majority of the cases the court heard in his first term, said Thomas Goldstein, a Washington lawyer and Supreme Court expert.

Kagan won’t face as many recusals as Marshall because she served for a shorter time as solicitor general and stepped aside from those duties earlier than Marshall did, Goldstein said. In addition, some of Marshall’s recusals related to his service on the federal appeals court in New York.

But Kagan’s anticipated absence could affect several important cases. It won’t be known for some time whether she did enough legal work defending President Barak Obama’s health care legislation to require her to step aside if and when that issue comes to the Supreme Court.

Appeals in civil lawsuits over anti-terror policies begun in the Bush administration and, in some cases, continued under Obama, could be affected.

The federal appeals court in Washington recently limited the rights of detainees at the U.S. base in Bagram, Afghanistan, to use federal courts to challenge their detention. Justice John Paul Stevens, whom Kagan would replace, was part of a bare five-justice majority that sided with detainees at the U.S. base at Guantanamo Bay, Cuba.

Again, because she signed the government’s briefs in the appeals court, Kagan would not be part of the high court’s consideration of the Bagram case, and it is by no means clear that she would vote as Stevens did.

The same consideration probably will doom the high court hopes of Maher Arar, the Canadian engineer who was mistakenly labeled a Muslim extremist, detained by U.S. authorities when he tried to change planes at Kennedy Airport in New York and sent to Syria. Arar claims he was tortured in Syria and wants to hold former Attorney General John Ashcroft and other officials liable for the decision to send him there.

The court could say as early as Monday whether it will hear Arar’s appeal of a ruling against him by the federal appeals court in New York. One consideration for the justices is that there probably would be only seven of them available to hear Arar’s case, meaning as few as four justices could hold sway.

In addition to Kagan, Justice Sonia Sotomayor would be out of the case. Sotomayor was a member of the appeals court that heard the case, although she did not take part in the decision.

Kagan’s ties to the tobacco issue predate her time as solicitor general. She was the Clinton administration’s chief negotiator in a drawn out and ultimately failed attempt to craft comprehensive tobacco legislation in the late 1990s.

The racketeering lawsuit against the industry came about after the effort in Congress collapsed. “One thing I can say for certain is nobody worked harder to try to bring people together,” recalled Matthew L. Myers, president of the Campaign for Tobacco-Free Kids. The group is one of several public health organizations that joined the lawsuit on the government’s side.

Now, Kagan would be unable to be part of a final resolution of the case in the form of a Supreme Court opinion and her absence from the case could prevent the government from extracting hundreds of billions of dollars from tobacco companies. “This case is filled with irony,” Myers said.

But he said it is not certain that the court would split along ideological lines. The government and the public health groups assert that a divided federal appeals court panel misread a provision of the racketeering law, creating a conflict with other appeals courts that have allowed trial judges to order payment, or disgorgement, of past profits.

That ruling preceded a nine-month trial that ended with a federal judge’s harsh 1,600-page opinion that found the industry engaged in racketeering and fraud over several decades.

Leading tobacco companies accounting for 90 percent of U.S. cigarette sales want the justices to wipe away court holdings that the industry illegally concealed the dangers of cigarette smoking. If they succeed, the attack on their profits also would be halted.

Philip Morris USA, the nation’s largest tobacco maker; its parent company Altria Group Inc.; R.J. Reynolds Tobacco Co.; British American Tobacco Investments Ltd. and Lorillard Tobacco Co. filed separate but related appeals that take issue with the opinion from U.S. District Judge Gladys Kessler and a unanimous appeals court ruling that largely upheld her.

Kessler ruled that the companies engaged in a scheme to defraud the public by falsely denying the adverse health effects of smoking, concealing evidence that nicotine is addictive and lying about their manipulation of nicotine in cigarettes to create addiction.

The justices have several options. They could decide to hear the appeal from one side or the other, or both. Or neither.

An argument for rejecting the entire case is that the appeals court that sided with Kessler was made up of Democratic and Republican appointees. Also, the high court has previously turned down a chance to review the appellate ruling on profits.

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