Kennedy’s (forgivable) error, discovered last week, is the latest in a string of miscues touching nearly every justice
With the Supreme Court unwilling to acknowledge and correct the recent spate of missed recusals, save for issuing apologies after the fact, Fix the Court has written to Sens. Ben Sasse and Richard Blumenthal, the chairman and ranking member of the Senate Judiciary’s Courts Subcommittee, to study whether congressional intervention is warranted.
FTC is recommending that the justices be required to use conflict-check software, as lower court judges are, or, at the very least, that the Federal Judicial Center study why missed recusals now seem so common. FTC also wants to hear from the justices as to why they believe these errors have mushroomed recently.
This request comes on the heels of the latest error-turned-disqualification: as of Friday, Justice Kennedy is now sitting out of April 18’s Washington v. U.S., as he recently learned he had participated in an earlier stage of the case while on the Ninth Circuit Court of Appeals some 33 years ago.
“Though the Kennedy episode is quite excusable given the time lag, it seems to be a more common occurrence nowadays that a justice participates in a case in error,” FTC executive director Gabe Roth said. “If the court itself is not working to fix that, Congress should find a manageable solution.”
The 2006 Breyer Committee report on judicial misconduct recommended that the Judicial Conference consider “requiring judges to use conflict-avoidance software” to better determine when a financial or familial interest, or their previous work, required jurists to sit out cases. The Conference followed that recommendation, and lower court judges have been obligated to use such software for the last decade. (The justices are not bound by JCUS directives.)
In recent years, missed recusals at the high court seem to be proliferating. Justice Kagan twice sat on Jennings v. Rodriguez before realizing last year the suit crossed her desk while she was solicitor general. Chief Justice Roberts missed a cert.-stage recusal in 2015 (ABB Inc. et al. v. Arizona Board of Regents et al.) due to his ownership of Texas Instruments shares and a merits-stage one in 2017 (Life Technologies v. Promega) due to his stake in the appellant’s parent company, Thermo Fisher Scientific. And Justice Breyer overlooked his wife’s shares in Johnson Controls, a party to FERC v. EPSA, when he sat on the case in 2015.
“Much as it was Congress that wrote the disqualification statutes that bind all federal judges and justices and, more recently, required all Article III judges to submit annual disclosure reports listing their financial holdings, Congress also has the authority to demand improvements in the area of missed recusals,” the letter concludes.
“In order for citizens to trust that justice is being done, we must first trust that our justices are playing by the rules.”
In cases in which it is less clear whether a recusal is required by statute, FTC has asked the justices involved to explain their reasons for participating. In December FTC sent letters to Justices Ginsburg and Gorsuch asking them why they believed they could hear cases involving the President and anti-union forces, respectively, despite their perceived conflicts of interest. Ginsburg famously spoke out against then-candidate Trump in 2016, and Gorsuch’s confirmation was supported by many of the same individuals who bankrolled the OT17 Janus v. AFSCME case.