Justice Kagan's absences reach an end

WASHINGTON -- 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 the 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.

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.