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Our OT18 Recusal Report Highlights a New Way in Which the Justices Are Hiding Their Disqualifications

Plus Once Again We Explain All of The Term’s Unexplained SCOTUS Recusals (Okay, All But Five)

Of the 201 times Supreme Court justices have disqualified themselves from cases and petitions this term, two stand out and for the same reason: both Chief Justice John Roberts and Justice Elena Kagan were recused from petitions they received as circuit justices for the D.C. and Ninth Circuits, respectively. Unfortunately, neither recusal was noted in a weekly orders list, just in the online docket.

These semi-hidden disqualifications only bolster the notion, discussed at a recent House Judiciary hearing, that each time a federal judge or justice recuses, he or she should explain why and do so in a manner the public can easily find.

“Absent a lot of digging, there’s no way for the public to know if the justices are making the right call ethically when they decide to hear a case,” FTC executive director Gabe Roth said. “This lack of explanation coupled with the growing list of missed recusals undermine the public’s faith in court’s integrity.”

Here is Fix the Court’s recusal report. Here is an easy-to-read chart. Here are all the OT18 orders that include recusals.

Roberts oversees the D.C. Circuit and recused himself from considering a petition in 18-8855, Hicks v. U.S., due to his previous work on that court. The petition was then transferred to Justice Clarence Thomas, since Thomas is next in seniority. The case was ultimately denied cert. on May 28, and the orders noted that Justice Brett Kavanaugh was recused, but Roberts’ prior recusal went unmentioned.

Kagan oversees the Ninth Circuit and recused herself from considering a petition in 18-1509, DHS, et al., v. Ibrahim, likely due to her work as U.S. solicitor general. It was transferred to Justice Neil Gorsuch, who’s one down in seniority from Kagan. The matter remains open, and FTC will track whether Kagan’s initial disqualification is noted in a future orders list.

Additional highlights in this year’s report include:

  • Though the overall number of recusals tracks with previous terms, stock-based ones have dropped precipitously, from 47 in OT16 to 13 in OT18, demonstrating the collateral benefit of a court that collectively owns fewer securitiesfewer potential conflicts and fewer needless disqualifications.
  • A stock-based recusal this term did, however, damage the cert. chances of a net neutrality petition from the D.C. Circuit, as Chief Justice Roberts owned AT&T shares at the time the case reached the high court (pp. 5-6) and stepped aside along with Justice Kavanaugh. Three justices, though, one short of cert., would have granted the petition. Perhaps related to this recusal, Roberts sold his AT&T stock a week and a half later.
  • There was yet another batch of undetermined recusals, as FTC was unable to confidently identify the reasoning behind five disqualifications – one each from Justices Stephen Breyer and Samuel Alito and three from Justice Kagan.
  • In spite of the justices’ continued stock selloff, FTC identified found two more missed recusals this term due to stock ownership. Justices Breyer and Alito should have disqualified themselves from cert. determination in 18-6644, Feng v. Komenda, et al., an employment discrimination case involving Rockwell Collins, a subsidiary of United Technologies, whose shares are owned by both justices.

Once again, “previous work” accounted for the vast majority of cert.-stage recusals (163 of 198), with Kagan still leading this category with at least 51, or as high as 54, despite being almost a decade removed from her work as solicitor general. All of the merits-stage recusals this term – there were three – were due to Kavanaugh’s previous judicial work.

Rounding out the recusals, FTC identified six caused by family ties, all triggered by Breyer’s brother who is a federal judge, and 11 were caused by justices being named in a suit.

FTC was unable to determine why justices stepped aside from five petitions. Breyer recused in 18-210, BATS Global Markets v. Providence, R.I., a class action lawsuit against several securities exchanges. It’s possible he recused because he owns stocks sold on these exchanges, but that wouldn’t be necessary under the recusal statute.

Alito recused in 18-1468, United Mine Workers v. Toffel, a case concerning a bankruptcy court’s decision to terminate a debtor’s obligation to pay premiums to the combined benefit fund. We think it’s likely that Alito’s significant stock and retirement holdings account for this recusal.

Finally, Kagan recused in 18-7939, In Re: Daniel E. Salley; in 18-5020, In Re: Lewis Brown; and in 17-6271, James v. United States. Though we can’t definitively say why in these cases, it’s likely related to her time as solicitor general, given the petitions come from federal prisoners. What’s also interesting about the first two Kagan cases here is that federal judges were named as parties, and that could also be a clue as to why she stepped aside.

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