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Justice Breyer on Recusals: "Trust Us"

As mentioned in an earlier post, Justice Stephen Breyer sold his Amgen stock in 2012 in order to hear a case in which a retirement board alleged that the biotech company had committed securities fraud. What was not mentioned was the fact that Justice Breyer’s brother Charles, a district court judge in California, had heard the case when it was first brought to federal court – and how family ties are often grounds for recusal.

In fact, we’ve found Justice Breyer to have an inconsistent recusal history when it comes to cases his brother has heard. While Justice Breyer sat for Amgen, he sat out Monsanto v. Geertson Seed Farm, a 2010 case also heard by Charles Breyer in district court.

It’s also worth pointing out that, unlike Justice Breyer, Justice Thomas did not recuse himself in Monsanto, even though Thomas had worked for the company, which itself went out of its way to note in a statement that “while Justice Thomas indeed wrote the majority opinion, this was a 6-2 decision” in its favor.

Breyer has also espoused the “trust us” view of recusals that has rankled ethicists in recent years. Since there are no clear rules governing recusals, it’s up to each justice to determine when to sit out a case. So when it comes to deciding whether there’s a conflict, Breyer said in 2012, “All my colleagues try to do the same thing, so I think this is a non-issue.”

Given the various ethical flare-ups at the court in recent years, the justices would do well to do more than “try” and establish a formal process to safeguard against situations in which a justice rules despite a clear conflict of interests.

The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Chief Justice Robert and his colleagues to be acting improperly on a regular basis, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.

Fix the Court is calling on the chief justice to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.

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