Supreme Court Recusals

Friday, September 28, 2007

IN MARCH, Chief Justice John G. Roberts Jr. recused himself from what has been billed as the most important securities case to come before the Supreme Court in decades. Last week, he did an about-face, announcing that he will be sitting on the bench when the case of Stoneridge Investment Partners v. Scientific-Atlanta et al. is argued on Oct. 9. Justice Roberts did not explain why he removed himself; nor did he offer an explanation of why he now believes that he can properly participate in the matter. Justice Stephen G. Breyer also recused himself last spring without explanation and remains off the case. This silence is unnecessary and could be counterproductive.

A justice must remove himself from deciding a case if his "impartiality might reasonably be questioned." A financial interest or the significant participation of a close family member in a case could serve as triggers. Justices have traditionally declined to elaborate on why they've stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts -- such as hiring the spouse or child of a justice as a lawyer on the case -- to force the removal of a justice who appears philosophically hostile to their arguments.

The reason for the recusal of the chief justice and Justice Breyer in the Stoneridge case seems to be routine. As Tony Mauro explained in Legal Times, both justices listed in their 2006 financial disclosure forms an investment of between $50,001 and $100,000 in Cisco Systems, the parent company of Scientific-Atlanta. Mr. Mauro presciently reported that it was likely that one or both of the justices would try to "unrecuse" himself by selling off the Cisco stock.

If stock ownership triggered the recusals, why not say exactly that in a brief contemporaneous statement announcing the recusal -- especially since the ownership or sale of the stock would eventually be revealed in the justices' annual financial disclosure statements?

The court rightly demands absolute secrecy in its deliberations to encourage candid debate and fend off corrupting outside influences. It correctly guards opinions until their official release to prevent unscrupulous parties from using the leaked information for inappropriate gains. Declining to provide immediate and simple answers to recusal decisions doesn't serve the same lofty public policy goals. Savvy appellate lawyers, many of whom make a career out of arguing cases before the Supreme Court, can easily figure out the unstated reasons for a recusal. Only the public remains in the dark.

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