Eight Supreme Court justices’ 2015 financial disclosure reports – released today by paper and more than a week after most members of Congress and cabinet secretaries posted theirs online – reveal reasons for justices’ recusals while exemplifying the disparities in transparency among the branches. (No report was submitted this year for Justice Antonin Scalia, who died in February, and we have posted the reports here.)
The reports showed once again that three justices – Chief Justice John Roberts and Justices Stephen Breyer and Samuel Alito – held stock in publicly traded companies that appeared before the high court either as litigants or as filers of amicus curiae, or “friend of the court,” briefs. In order to minimize recusals, Fix the Court has called on these three to place their securities in blind trusts or to divest from individual holdings altogether.
We can now confirm that there were two case-based recusals in 2015 due to stock ownership:
1. Breyer recused from Commil v. Cisco Systems, a patent case argued Mar. 31, due to his ownership of as much as $100,000 in Cisco Systems stock.
2. Alito recused from FERC v. EPSA, an Oct. 15 electricity regulation case, due to his ownership of as much as $50,000 in Johnson Controls shares. Breyer’s wife also owned Johnson Controls shares last year, but the justice missed the stock conflict, sat on the case and then sold the shares once the mistake was realized the following day, which is reflected in his report.
Further, Alito’s recusal in Puerto Rico v. Franklin California Tax-Free Trust, argued Mar. 22, 2016, is likely due to his ownership of upto $100,000 in Franklin mutual funds, but that will not be confirmed until his 2016 disclosure is released next summer. Similarly, as of Dec. 31, 2015, Roberts owned up to $500,000 in Microsoft shares, which he likely sold the following month since he did not recuse himself from the court’s Jan. 15 decision to grant cert. in the tech giant’s case on class certification, Microsoft v. Baker, though that will not be confirmed until next year either.
Had a member of Congress or cabinet secretary made a similar sale to avoid a conflict of interest, he or she would have had to notify the public within 45 days. Additionally, had Justice Scalia not passed away on his privately-funded trip in February, the public would likely not have learned about it until the 2016 disclosures were released, while a similar trip made by a member of Congress would have required prior approval, a list of co-participants and an agenda – all of which would be made publicly available around the time of the trip.
“While members of the legislative and executive branches file reports throughout the year about their stock transactions and privately-financed travel, and even federal district and circuit court judges place certain details about their junkets online as they occur, the Supreme Court stands alone in its policy of releasing such information only once per year,” said Gabe Roth, executive director of Fix the Court. “Other branches have worked to be responsive to modern times, and while the high court’s docket each year comprises a number of tech-based disputes, the court as an institution is still operating as if the Information Age never began.”
Over the next few weeks, Fix the Court will analyze the justices’ stock ownership to determine if any heard cases in which they owned shares in a company that filed an amicus brief. While this would not warrant a recusal, it does beg the question of why a handful of justices would own individuals shares at all.
The organization is again calling called on the justices to modernize the financial disclosure process by putting the reports online, yet the justices, the Administrative Office of U.S. Courts (AO) that receives the reports and the Judicial Conference’s Committee on Financial Disclosure all maintain in concert the practice of releasing only paper copies of the disclosures.
In order to obtain the justices’ reports, Fix the Court downloaded and filled out a form from the AO website and faxed it in. Then, after receiving notice the reports were ready five weeks later, as well as notice of the cost of the reports at $0.20 per page, our staff went in person to present a $14.60 check at the AO building in Washington, D.C., at which point court staff handed over the paper reports, which we uploaded to http://tinyurl.com/2015disclosures.
Public disclosures date back to the 1970s and the aftermath of Watergate, after which Congress passed the Ethics in Government Act, requiring top officials in all three branches to report certain details about their finances and reimbursements each year. A handful of federal judges challenged the constitutionality of the disclosure requirement but lost their case in the Fifth Circuit in 1979. The Supreme Court decided not to review that decision.
 Breyer’s recusal in City of San Francisco vs. Sheehan, argued Mar. 23, 2015, was due to the participation of his brother, a federal judge in San Francisco, at an earlier stage. Justice Elena Kagan sat out Fisher v. UT-Austin, argued Dec. 9, 2015, due to her earlier work as U.S. solicitor general, and Justice Sonia Sotomayor’s participation in RJR Nabisco v. European Community in the Second Circuit in 2004 caused her recusal when the case reached the high court on Mar. 21, 2016.