Faced with the possibility that Justice Kagan will recuse herself in the First Circuit DoMA challenge, the Justice Department has taken the remarkable step of asking the Supreme Court to grant cert in a case where there is no Court of Appeals opinion yet. The cert petition filed in Golinski v. OPM asks the Court for expedited consideration because the DoMA issues are (paraphrasing the standard for when a level of appeal can be skipped) “of exceptional public importance and call for definitive and timely resolution.” The petition does not reference any possibility of recusal, which is appropriate; it is up to Justice Kagan, not DoJ, to raise that question. But the basis cited in the petition for justifying the “deviation from normal procedure” – that the district court in Golinski applied heightened scrutiny while the First Circuit relied on a rational basis test to reach the same result – is a makeweight. The Supreme Court can and will determine the standard of review to be followed regardless of which particular lawsuits are before it. What everyone knows, however, is that a ruling on DoMA’s constitutionality with only eight Justices participating could result in a tie, which would fall short of a resolution binding throughout the nation. (A tie vote leaves the lower court ruling standing.)
Recusal standards pertain to the specific lawsuit, not the broader question. So Justice Kagan could be recused from consideration of the appeal in the Massachusetts/Gill case, which was a political hot potato in DoJ while she was Solicitor General, but not required to absent herself from the adjudication of other cases that challenge DoMA’s constitutionality. In the Senate confirmation process, Kagan acknowledged at least limited involvement in discussions of the Gill litigation.
(The initial cert petition in BLAG v. Gill, decided by the First Circuit on May 31, was filed on June 29 by the lawyers hired by Congressional Republicans to defend DoMA. DoJ has now also filed for cert in Gill.)
In yet another DoMA challenge, Pederson v. OPM, U.S. District Court Court Judge Vanessa Bryant has denied BLAG’s motion to stay consideration of the case in light of the pendency of Gill in the Supreme Court. If Judge Bryant issues her ruling on the merits this summer, I would not be surprised if the Supreme Court receives either a third cert petition modeled on the one in Golinski or a letter for the Gill and Golinski files informing the Justices of the pendency of this case in the Second Circuit.
Then what? The Supreme Court does not issue any decisions over the summer (except in emergency matters such as death penalty appeals). It won’t rule on either cert petition until all sides have weighed in, but there is sufficient time for that to happen before the end of August. In any event, it may well be that no party will oppose a grant of cert in both cases. All of these factors increase the likelihood that the Court will calendar both Gill and Golinski for the coming term. And for the same of both justice and efficiency, I hope they do.