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Statement on Justice Kagan’s Belated Recusal in Immigration Case

Statement from FTC’s Gabe Roth on Justice Elena Kagan’s belated recusal in Jennings v. Rodriguez:

Justice Kagan’s realization that she had a conflict in a case more than a month after it was reargued – and many months after it first appeared on the Supreme Court’s docket – demonstrates that the institution needs a far more comprehensive conflict-check system.

We as citizens trust that our nation’s top legal officials work hard to avoid the appearance of impropriety. But today’s episode marks the third term in a row in which a justice heard an argument and then belatedly noticed a conflict.

The justices can and should do better, and they can start by adopting a uniform software based conflict check system currently used by all lower federal judges.

Last term, Chief Justice John Roberts missed a recusal in Life Technologies v.  Promega and stepped aside from the case a month after argument when the conflict came to light. The term before, Justice Stephen Breyer missed a recusal in FERC v. EPSA and stepped aside when he realized his mistake the next day. Both conflicts were due to the justices’ stock holdings.

Why Do the Justices Keep Forgetting Their Conflicts of Interest?

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