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Statement on Justice Kennedy's Late Recusal in Forthcoming SCOTUS Case

Justice Anthony Kennedy has just recused himself from a case the Supreme Court will hear on April 18 due to his involvement in an earlier stage of the lawsuit in 1985 while sitting on the Ninth Circuit.

As several commentators have pointed out, “That has to be some record.”

Here’s a statement from FTC’s Gabe Roth on the missed recusal:

The court should be commended for notifying counsel of the error as soon as it was discovered and, in what we think is a first, for uploading the recusal notice to the online docket.

Unlike for stock- and family-based recusals, making a mistake on a previous-case-based recusal from 33 years ago is easily forgiven. Nevertheless, this episode underscores the immediate need for the court to use a software-based conflict-check system that would catch this.

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