By Justin Sink
Justice Elena Kagan said Monday that she would recuse herself from the challenge to Arizona's controversial immigration law, presumably because she served as President Obama's solicitor general when the federal government filed the original lawsuit against the state.
Her recusal opens up the possibility for a rare 4-4 split on the court; since a lower court blocked provisions of the law, the tie would uphold that ruling and function as a win for the Obama administration. But the court would not be able to settle the larger issue of whether the Arizona statute is constitutional in the event of a tie.
On the other side, liberals have pushed Justice Clarence Thomas to recuse himself from hearing the healthcare suit since his wife, Virginia, has raised money and protested against the legislation.
Federal law requires that a “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" or if they, in a previous federal job, served as a "counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”