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.