Back when we were all speculating as to whether Elena Kagan was a liberal with sympathies for the imperial executive, I argued that the one thing that was certain was that her role as solicitor general would mean, that she would be recusing herself in a number of the relevant cases, meaning a tie would be the best case scenario even if Justice Anthony Kennedy could be convinced to side with the moderate wing of the court.
But those rendition/torture/targeted killing cases aren't the only ones Kagan is going to have to recuse herself from, Jason Mazzone notes:
Justice Elena Kagan has recused herself from the case. This represents some very good news for the Ninth Circuit: its decision on the merits will almost certainly be the last word in the case. This is because if the Supreme Court reviews the Ninth Circuit, it will likely split 4-4, thus automatically affirming the Ninth Circuit's decision. The Ninth Circuit has something of a reputation for zany decisions that end up being overturned. Let's see what it does now that it knows it isn't going to be reversed.
That assumes Kennedy feels like being consistent, and Ninth Circuit isn't feeling very deferential. That alleged bastion of liberalism has disappointed before.
