Elena Kagan's Missed Vote Means Tie in Costco Supreme Court Case and More of the Same Ahead

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The problem with hiring longtime lawyers to become judges is that they can't preside over cases they worked on previously. For Supreme Court Justice Elena Kagan, who was most recently the U.S. Solicitor General and still has that new Justice smell, this means she'll be disqualified from 20 of the 38 cases on the high court's schedule this term. The results of this arrangement came into full scope today as the Supreme Court ruled in a 4-4 tie against Issaquah-based Costco in a suit with worldwide implications over whether companies can import cheap luxury items and sell them at a discount.

The case, Costco v. Omega, had to do with the practice of buying expensive goods--in this case Omega brand luxury watches--in countries where they're cheap, importing them to the U.S. and selling them at a lower rate than the manufacturer itself.

The case was to set precedent for an entire $60 billion-plus per year "gray market" of goods that stores like Costco, Target and eBay import on the cheap then turn around and sell for price that's above what they pay, but still way below what the manufacturer would charge.

Instead of setting a precedent, however, Kagan's absence and the resulting tie vote means that previous court rulings stand, but no Supreme Court precedent is made. In this case, previous courts had ruled against Costco, saying that importing goods like this without the manufacturer's permission violates U.S. copyright law.

Now it's possible that a similar case may come back before the Supreme Court and once again Kagan may have to bow out. And given that more than half her upcoming cases require her to recuse herself from hearing them, this whole tie-vote-letdown thing may be the new norm on the high court for a while.

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