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FTC Publishes Reasoning Behind Justices' OT16 Recusals - Well, All But Eight of Them

Help us figure out why Justices Kennedy, Thomas and Alito stepped aside from cases this term

Supreme Court justices bowed out of 204 cases in OT16 – 200 times at the cert. stage and four times at the merits stage – mostly due to prior work and stock holdings yet gave no explanations for their recusals as is their custom, according to a new report released today by Fix the Court.

While the reasoning behind most recusals – i.e., previous work, stock ownership or family ties – was easily identified, FTC could not determine the reasoning behind eight of them, including one each from Justice Kennedy and Thomas, who rarely recuse.

Another three Chief Justice Roberts recusals, all in cases in which Verizon was involved, seemed to be errors, as the chief sold his Verizon stock more than two years ago. Roberts also missed a stock conflict at the merits stage in December but recused from Life Technologies Corp. v Promega Corp. once the error was brought to his attention in January.

“With all these mistakes and mysteries, it’s clear to all that the process of determining justices’ recusals is an inexact science, which makes no sense given that the justices either have a conflict of interests in a case or they don’t,” Fix the Court executive director Gabe Roth said. “The accumulation of errors in one of the court’s most basic actions raises questions about the functioning and the integrity of the institution.”

Here is the recusal report. Here is an easy-to-read chart of the recusals. Here are the OT16 orders that include recusals.

Most frustrating transparency-wise among the OT16 recusals were the 48 times Roberts and Justices Breyer and Alito forfeited their duty to sit in order to hold on to investments in companies with cases before the court. The three did shed up to $1.045 million from their stock portfolios in 2016 but still owned individual shares in 53 companies at the end of last year, including ones like Cisco, Johnson & Johnson and Time Warner, which often have cases before the court.

Finally, there were eight cases whose recusals we could not figure out. Six were Alito recusals, concerning a bankruptcy, errors in arbitration, who’s liable for faulty car parts and a couple of criminal cases.

Justice Thomas, who almost never recuses from cases, stepped aside in Soo Line Railroad Co. v. Werner Enterprises. Our best guess is that his recusal was due to his wife Ginni’s ties to Nebraska, which is where Werner is headquartered.

Justice Kennedy, another stranger to the recusals report, stepped aside from Gordon, Chance E. v. CFPB. (The case was captioned “Gordon, Chance E. v. Consumer Protection Bureau” in the orders, and we’ve alerted the clerk to that error.) None of Kennedy’s children – who work in finance, real estate and the arts – has ever worked for the CFPB, and none of the co-litigants, listed here, has a tie to Kennedy that we could identify.

Anyone reading this report and having an inkling as to why these recusals occurred is invited to alert us at

FTC has called on the court to revert to its practice, ended in October Term 1904, of periodically listing reasons for justices’ cert.- and merits-stage recusals and to adopt the 2006 Breyer Commission report recommendation to implement a software-based conflict-check system. (In addition, FTC has urged Justice Ginsburg to issue a formal reasoning for why she should not be recused in OT17’s travel ban case, from which 58 GOP congressmen have ask her to step aside.)

Just last week the court learned its FY18 budget would include $1.5 million for IT improvements, and a stronger conflict-check system would seem to fall under that type of appropriation.

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