Alito, Kagan Top Justices in Supreme Court Recusal ‘Black Box’

[Gunnar Larson]

https://news.bloomberglaw.com/us-law-week/alito-kagan-top-justices-in-supreme-court-recusal-black-box-1


Justices decide themselves whether to step away from case
Recusals over stocks, previous work; pressure to explain
US Supreme Court justices recused themselves in roughly 3% of appeals since
2018, with Samuel Alito and Elena Kagan doing so most often, a Bloomberg
Law analysis shows.

Virtually all of the more than 750 recusals identified in a review of court
orders lacked an explanation of why the justices avoided participating.
Neither they nor the court are required to give reasons. But financial
disclosures, orders, and case records provide insight into their
decision-making.

The period covers a changing court with advocacy groups, ethics scholars,
and lawmakers from both parties pressing for more transparency about how
the justices do their work behind closed doors. Legislative proposals and
other calls for a code of conduct applicable to the justices have sought
more openness about recusal.

“Recusal explanations would help the public understand the justices’
entanglements so we’d have a standard by which to hold them to and a way to
see if the nine are following the recusal law in a consistent manner,” said
Gabe Roth, executive director of Fix the Court. The non-profit watchdog
also compiles recusal data, and some of its analysis was included in this
report.

Nearly all recusals involved petitions that were denied review. A small
number occurred at the merits stage and off the so-called shadow docket,
leaving the nine-member bench shorthanded when deciding those matters. The
court hears about 70 cases each term.

Alito’s stock holdings appear to account for dozens of recusals, while
Kagan’s stint as US solicitor general in the Obama administration are
likely related to most of hers.

Justice Clarence Thomas almost never recuses, despite outside pressure to
do so. Most recently, Thomas faced calls to sit out a Jan. 6-related case
because his wife, Ginni, lobbied the White House to overturn the 2020
election.


‘Black Box’
Federal law requires that justices and other federal judges disqualify
themselves when impartiality could be questioned. That includes any
personal bias against or ties to a party, as well as conflicts arising from
financial holdings. The code of conduct for lower court judges is
considered guidance and Chief Justice John Roberts says the high court
abides by it.

Lower federal courts have for years used software to help flag conflicts.
But Indiana law professor and legal ethics expert Charles Geyh called the
Supreme Court’s handling of recusals a “black box.”

The high court declined to discuss recusals but has said they are largely
left to the individual justices and their staffs. The process includes an
initial conflict check in chambers. A rule adopted by the court in 2019 to
make it easier to identify financial or personal conflicts requires
attorneys to disclose certain information about their clients.

Roberts has said the justices may seek advice from the court’s legal office
or consult their colleagues when weighing recusal decisions. Justices have
called recusal a personal decision and have rebuffed suggestions to explain
their decisions, which are unreviewable.

New Justices, Stocks
The recusal review included the October 2018 term through the first half of
the current one. The justices recused in roughly 3% of the estimated 24,000
appeals logged during the period.

Kagan and Alito recused more than 130 times each. Others varied, with
roughly 100 recusals for Amy Coney Barrett, Brett Kavanaugh, and Neil
Gorsuch to about 60 or under for Roberts, Stephen Breyer, and Sonia
Sotomayor. Thomas and Ruth Bader Ginsburg recorded a few each for the
period. Ginsburg died in 2020 and Breyer retired last year.

With two dozen individual stocks listed on his latest financial disclosure
form last May, more than a third of Alito’s recusals over the period likely
were due to share conflicts. Petitioners had links to businesses like
Johnson & Johnson, AbbVie Inc., 3M Co., PNC Bank, a unit of PNC Financial
Services Group Inc., and Janssen Pharmaceuticals, a unit of J&J. Apparent
stock ties to energy and aerospace firms, like ConnocoPhillips Co. and
Boeing Co., appeared to also factor in Alito’s recusals.

Roberts and Breyer also recused due to likely stock conflicts although they
reported fewer holdings over the period than Alito. Breyer appeared to have
conflicts with aerospace firm Raytheon Technologies Corp. and
home-improvement retailer Lowe’s Cos Inc., while Roberts recused in cases
involving AT&T Inc., which was no longer listed on his disclosure form as
of 2021, and Sirius XM Holdings Inc. Roberts, Kagan, and Gorsuch also have
recused likely due to their fund accounts with financial services firm
Charles Schwab & Co. Inc.

The judiciary should list investments, bank accounts, and other reportable
assets of a certain value they, their spouses, and dependent children hold.

Financial conflicts are the “easy cases” to identify since the rules are
cut and dry, Russell Wheeler, a Brookings Institution scholar who follows
the judiciary, has said. But Samford University law professor William Ross
says recusal in other cases can be highly subjective.

“In particular, the language ‘personal bias or prejudice’ can be open to
many interpretations. And a justice might not believe she is biased and
that her partiality could not be questioned even though many third parties
might question it,” Ross said.

‘Abundance of Caution’
Recusals often involve ties to previous work, Fix the Court has found. For
instance, most of Kagan’s recusals occurred in cases in which the US was a
defendant, a nod to her time as the government’s top lawyer at the Supreme
Court.

The solicitor general’s office supervises appellate litigation involving
the US government. With such a broad mandate, it’s not surprising that
Kagan has recused more than most of her colleagues, even though she’s been
on the bench for over a decade. Wheeler suggests she’s acting out of “an
abundance of caution” to avoid the appearance of bias.

Recusals also were traced to cases bubbling up from a justice’s time as an
appellate judge, whether they participated in them or were simply a member
of the court that considered them. All but Kagan sat on federal circuit
courts, and recusals tend to swell temporarily for newer justices.

The review included the first terms for Trump appointees Kavanaugh and
Barrett, and Biden selection Ketanji Brown Jackson, who took her seat in
June. Gorsuch, another Trump appointment, was seated in April 2017.

Occasionally justices step aside for other reasons. Jackson, who has
accounted for about a dozen of the more than 70 court recusals this term so
far, said at her confirmation hearing that she wouldn’t participate in the
affirmative action case Students for Fair Admissions v. Harvard due to her
close ties to the school.

Breyer recused from a number of appeals involving matters heard by his
brother, Charles Breyer, a senior US district judge in California. These
included cases involving Volkswagen AG over its diesel emissions cheating
scandal. Justices also recused when they were named in suits.

Roberts also decided against considering a case involving the Smithsonian
Institution, likely because he serves as its chancellor, according to a
2021 report by the Presidential Commission on the Supreme Court. Kavanaugh
recused when the court rejected a J&J appeal in a case involving talc
products and cancer claims. His father was a cosmetic-industry lobbyist.

Case Against
Georgetown Law visiting professor Caroline Fredrickson said the Supreme
Court has come under an unusual amount of scrutiny lately, particularly
over questions about its inner workings. An explanation regarding recusal
determinations could ease tensions. “It’s low-hanging fruit,” said
Fredrickson, a former president of the progressive American Constitution
Society.

But in making the justices explain recusals, Stetson University law
professor Louis J. Virelli cautions “be careful what you wish for.” He’s
written that explanations could place a justice in the position of creating
“what amounts to a policy decision for the entire court” and put
unnecessary pressure on future justices.

Mandating written explanations also could have the unintended effect of
discouraging recusals, at least in cases where there isn’t necessarily a
compelling reason to do so “because justices might not want to take the
time and trouble,” Ross said.

Virelli pointed to Antonin Scalia’s 2004 decision not to recuse in a case
involving Dick Cheney despite going on a hunting trip with the then-vice
president. Scalia wrote that recusal could encourage more calls for
justices to do so, but explaining his thinking did little to quell concerns
that he could be impartial.

In another rare instance of a justice explaining his decision to not
recuse, William Rehnquist said in 1972’s Laird v. Tatum that doing so
outside of rare circumstances wouldn’t be appropriate.

Breyer told a House hearing in 2015 that justices have a duty to sit to
ensure majority opinions, recusal was a “personal decision,” and that he
followed the code of ethics for lower court judges.

“I think this is the best way to run this institution,” Breyer said.

Methodology
Bloomberg Law reviewed Supreme Court orders from October 2018 through
January 2023 to determine when and how frequently each justice recused.
Reporters also consulted the justices’ annual financial disclosures and
certain lower court filings to identify likely reasons for recusal.
Findings were also compared to data and analysis compiled by Supreme Court
watchdog Fix the Court and the Presidential Commission on the Supreme Court.

Percentages for each justice are calculated against the court’s total
recusals per term, and include rounding. Recusals are counted once per
justice per case. All data, case filings, and disclosure forms are publicly
available on federal court websites.
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