Elena Kagan ? AP file
Alex Brandon  /  AP
Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington before the Senate Judiciary Committee hearing on her nomination on June 30, 2010.
updated 4/21/2011 10:55:20 AM ET 2011-04-21T14:55:20

Justice Elena Kagan's leather-backed chair was empty this week for the 26th and final time this term while the other Supreme Court justices listened to arguments in an obscure dispute between the government and an Indian tribe.

When President Barack Obama nominated Kagan for the Supreme Court last year, some court observers worried that her work as solicitor general would force her from enough cases to pose a serious problem for the high court.

After all, there is nothing worse for a petitioner than a meaningless 4-4 vote after expending all the effort that goes into winning a precious spot on the court's calendar and presenting arguments to the justices. Tie votes leave the lower court ruling in place but set no national precedent.

So far, though, Kagan's absence has been important only once in 19 cases the court has decided without her. A lawsuit about Costco's sale of Swiss-made Omega watches at a steep discount ended up 4-4, leaving unresolved an issue about rules that apply to so-called gray market goods that are purchased abroad, then imported and resold without the permission of the manufacturer.

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Story: Kagan takes her place on Supreme Court bench

In the other 18 cases, there occasionally have been as many as two dissenting votes, but more often none at all, so Kagan's absence didn't prevent reaching a decision.

Of the remaining undecided cases that do not include her, the most important ones concern Arizona's employer sanctions law for knowingly hiring undocumented workers and the government's use of a federal law intended to ensure the presence of witnesses to detain terrorism suspects.

Kagan said from the outset that removing herself from cases in which she had taken part at the Justice Department would be a short-term problem that would dissipate fairly quickly.

She has been out of 26 of the term's 78 arguments so far, but has missed just six of the 37 cases argued this year. The court, with Kagan, will hear the final four cases of its term next week.

The decision to stay out of a case is a justice's alone to make, guided by a federal law that bars judges from hearing 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.

The court's consideration of two big issues — health care and gay marriage — that appear headed the justices' way soon could be significantly affected if Kagan were to sit out. It is by no means certain that she would step aside from either of those. She already has taken part in the court's denial of a health care appeal, but that case turned on procedural issues, not the substance of Obama's health care overhaul.

Scalia presides
Another justice's decision to step aside from a high court case gave Justice Antonin Scalia his first chance in more than 24 years on the court to preside over an argument.

Chief Justice John Roberts' ownership of Microsoft Corp. stock forced him out of the court's consideration of a patent dispute with a Canadian company. That left Scalia, the longest-serving justice since John Paul Stevens retired, in charge.

It should be said that Roberts sometimes has to direct traffic on the bench because the other justices are cutting off their colleagues' questions or jumping in to answer, which really is the job of the lawyer arguing the case. Scalia is not the only culprit, but he may be the leading recidivist.

Scalia was not his usual acerbic self during the patent argument, though that could be attributable to the less than lively nature of the argument as well as his unaccustomed role.

But he carried out his duties as presiding justice well, with one small glitch.

The Supreme Court's guide for lawyers is quite explicit about the way things are supposed to happen. It admonishes lawyers delivering argument to "remain standing at the lectern and say nothing until the Chief Justice recognizes you by name."

Scalia appeared to be chatting with Justice Anthony Kennedy when Seth Waxman, the lawyer for Toronto-based i4i, stood at the lectern and awaited recognition.

Waxman waited longer than usual before he breached court custom and began his argument.

"Justice Scalia and may it please the court," Waxman said, using the traditional opening line.

That got Scalia's attention. "Mr. Waxman," he replied.

Frozen yogurt justice
Kagan has been on the court just nine months, but her concern about her legacy is already obvious.

She was known as the coffee dean at Harvard Law School for providing free coffee to students.

Now, she told a Harvard reunion recently, she will be known as the frozen yogurt justice.

The junior justice at the tradition-bound court serves on the cafeteria committee, and Kagan was taking credit for the frozen yogurt machine that appeared in the court cafeteria a couple of months back.

Now, if she can only do something about the rest of the menu.

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