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Recent Times in Which a Justice Failed to Recuse Despite a Conflict of Interests

1 and 2. OT19: Justices Breyer, Sotomayor and Gorsuch have book deals with Penguin Random House, with the latter two of three earning big bucks from these contracts (Gorsuch, about $555,000 since his confirmation; Sotomayor, about $2 million). In 2019, PRH was a respondent in a copyright infringement suit at SCOTUS, Nicassio v. Viacom International and Penguin Random House, and only Breyer recused, though not because of his writing but because at the time, his wife’s family’s publishing company, Pearson, owned a large stake in PRH. Though the “financial interest” language in the federal recusal statute is typically interpreted to mean stocks, these levels of earnings, at least for two of three, should require recusal, and Breyer should be lumped in, as well, for his relationship with PRH. Missed recusal on 12/9/19 (cert denied); rehearing denied 2/24/20. FTC identified these conflicts in its July 2020 recusal report, but no further action was taken.

3 and 4. OT18: Justices Breyer and Alito failed to recuse in Feng v. Komenda and Rockwell Collins, Inc., though each own shares in Rockwell’s parent company, United Technologies Corp.; missed recusal on 1/14/19 (cert. denied). FTC identified this conflict on 4/8/19, two and a half months after cert. was denied, and the Supreme Court responded that afternoon, saying that the justices would have had “no way” to know about the conflict since the company in question waived the right to respond. FTC finds that reasoning spurious.

5. OT17: Chief Justice Roberts failed to recuse in Marcus Roberts et al. v. AT&T Mobility despite owning shares in Time-Warner, which had merged with AT&T four days prior; missed recusal on 6/18/18 (cert. denied). FTC identified this conflict five months after cert. was denied, and no further action has been taken.

6. OT17: Justice Kennedy failed to recuse in Washington v. U.S. despite his previous work on the case; missed recusal on 1/2/18 (cert. granted); reported by SCOTUS and recused on 3/23/18.

7. and 6. OT16 and OT17: Justice Kagan failed to recuse in Jennings v. Rodriguez despite her previous work on the case; missed recusal on 11/30/16 (argued) and 10/3/17 (reargued); reported and recused on 11/10/17.

8. OT16: Justice Alito failed to recuse in Merck Sharp & Dohme Corp. v. Albrecht despite owning shares in Merck; missed recusal on 6/27/17 (application to extend the time to file); reported and recused on 9/22/17.

9. OT16: Chief Justice Roberts failed to recuse in Life Technologies Corp. v. Promega Corp. despite owning shares in Thermo Fisher Scientific, which owns Life Technologies; missed recusal on 12/6/16 (argued); reported and recused on 1/4/17.

10. OT15: Justice Breyer failed to recuse in FERC v. EPSA despite owning shares in Johnson Controls, a party on the EPSA side; missed recusal on 10/14/15 (argued), reported and remained on case on 10/15/15. Breyer did not recuse at first, learned about the conflict the day after oral argument in FERC v. EPSA and then sold his stock – or his wife did – that day.

11. OT15: Chief Justice Roberts failed to recuse in ABB Inc., et al. v. Arizona Board of Regents, et al., despite owning shares in Texas Instruments stock, a party on the ABB side; missed recusal on 10/5/15 (cert. denied), reported on 12/18/15. FTC identified this conflict two months after cert. was denied and brought it to the chief’s attention. No further action was taken.

Why Do the Justices Keep Forgetting Their Conflicts of Interest?

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