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John Roberts Voted. But He Shouldn't Have.

Fix the Court Finds Chief Justice Roberts Missed Another Statutory Stock Conflict

In orders released on June 18 the Supreme Court noted that the justices denied cert. in 17-1287, Marcus Roberts et al. v. AT&T Mobility, on whether the telecom falsely advertised its mobile phone service plans. But four days earlier, Time Warner, whose shares the Chief Justice owns*, had become a subsidiary of AT&T, meaning that by law Roberts should have stepped aside from the cert. determination.

This marks the third time in the last three years that the Chief has missed a recusal due to his stock ownership. Justices Kennedy, Breyer and Kagan have also missed statutory recusals in the last few years.

“Maintaining integrity in his institution should be a top priority of the Chief Justice,” Fix the Court executive director Gabe Roth said. “Unforced errors like failing to recuse do the opposite. The solution is simple, though: the three justices who own individual stocks –Roberts, Breyer and Alito – should divest from these holdings and invest solely in blended funds and retirement accounts like the rest of their colleagues.”

Since Fix the Court was founded, the number of stocks owned by the justices has dropped from 73 at the end of 2014 to 44 at the end of 2017. It’s likely that number is now lower given recent notice that Alito is no longer recused in an upcoming case involving Merck, a company whose shares he’s owned.

One additional note on the Roberts v. AT&T case: it is possible that the Chief Justice voted on cert. at a June 14 conference – i.e., on the same day in which the AT&T-Time-Warner merger closed. Nevertheless, in order to avoid the appearance of impropriety, the Supreme Court Clerk’s Office or Judicial Conference Committee on Financial Disclosure should have notified Roberts of the merger and its implications for his portfolio and the cases pending before the court.

This miss came to light following Roberts’ recusal Monday on the consolidated net neutrality petitions from the D.C. Circuit, one of which was 17-499, AT&T Inc. v. FCC et al.

Last term, Roberts recused himself from two other Time-Warner petitions that reached SCOTUS – Groshek v. Time Warner Cable et al. (on whether prospective employers may obtain a candidate’s credit report) and Front Row Technologies v. MLB et al. (over a patent for distributing multimedia content) – while the other two stock-owning justices recused from more than two dozen petition determinations due to stock ownership in blue chips like PNC, Oracle, Caterpillar, Johnson & Johnson and Pearson.

*Stock ownership data is accurate as of Dec. 31, 2017, due to current SCOTUS financial disclosure rules.

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