Throughout Justice Kagan’s confirmation process, a lot of virtual ink was spilled on the recusal issue, and the extent to which her prior service as Solicitor General would preclude her from participating in a not-insignificant percentage of the Court’s docket. The consensus that seemed to emerge was that (1) these concerns were overblown; and (2) even if they weren’t, recusal would be at most a short-term issue, and would not generally interfere with either the Court’s workload or its ability to continue to play its assigned role within our legal system.
In at least one area, though, it seems that Justice Kagan’s recusals may well be of massive, long-term significance: the continuing habeas litigation arising out of Guantanamo. At last count, there are currently eight different petitions for certiorari before the Court in Guantanamo cases, which between them raise a battery of issues going to (1) the power of the federal courts to effectuate the release of detainees who have prevailed in their habeas cases; (2) the power of the federal courts to provide notice and a hearing before a detainee is involuntarily transferred to their home country or somewhere else; and (3) the proper procedural, evidentiary, and substantive standards to govern disposition of the merits of these cases. And in light of yesterday’s denial of rehearing en banc by the D.C. Circuit