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Fix the Court's N.Y. Times Op-Ed Stirs Up Some Controversy

A couple of law professors have taken issue with the op-ed that Fix the Court executive director Gabe Roth wrote in the New York Times on Oct. 11 – namely assertions about Justice Elena Kagan’s and Chief Justice John Roberts’ perceived conflicts of interest in recent health care and arbitration cases, respectively.

His response is as follows:

The Code of Conduct for U.S. Judges -which Supreme Court justices aren’t legally bound to follow yet which, according to Chief Justice Roberts, is “consult[ed] in assessing ethical obligations” – states that judges should avoid impropriety and even the “appearance of impropriety” while serving on the bench.

To a neutral third party, it would appear that serving as solicitor general at the time of the passage of a president’s signature legislative achievement could constitute a conflict of interests should that law be challenged in court.

The record seems to indicate there may not have been a conflict here, but the fact that there is no formal mechanism for proving it either way – and that all recusal decisions are made solely by a potentially conflicted justice herself – only further underscores how the high court has a long way to go when it comes to implementing and abiding by best practices in judicial ethics.

Further, regarding Chief Justice Roberts’ participation in 2011 case on class actions, I am not contending that Roberts should have recused himself since he owned securities of various companies that filed amicus briefs in favor of the petitioner.

What I am asserting – as I have said time and again, though more recently it seems to be sticking given certain divestments – is that Roberts and Justices Breyer and Alito should not own stock in individual companies, as, akin to the Kagan example, there is an appearance of impropriety when the justices are, time and again and as recently as last week, hearing cases featuring amici whose shares they own – with those companies winning said cases more than 60 percent of the time since 2009.

If portfolios comprising a wide range non-conflict-inducing money market accounts, bonds and real estate work for the other five justices, they should be good enough for Roberts, Breyer and Alito.

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