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There Seems to Have Been Some More Missed Recusals

By Tyler Cooper, FTC senior researcher

If you were made aware of a systemic problem at work, declined to do anything to fix it and then claimed that each consequence stemming from that problem was simply a “mistake,” would that excuse be tolerated?

If your answer is “yes,” then you may be a Supreme Court justice.

In OT18, Justices Breyer and Alito failed to recuse in 18-6644, Feng v. Komenda and Rockwell Collins, Inc., though each own shares in Rockwell’s parent company, United Technologies Corp. SCOTUS claimed there was “no way” to know about the conflict at the time since the company in question waived the right to respond, and when a respondent waives that right, they don’t file a Rule 29.6 corporate disclosure statement.

Yet somehow we found out about this, meaning the justices could have found out about this and recused.

On May 17, SCOTUS denied cert in 20-1227, Whitehead v. Netflix, et al., where one of the “et al.” was an “unnamed Random House publisher.” That’s not a typo; that’s what Mr. Whitehead wrote in his petition.

Four justices—Breyer, Sotomayor, Gorsuch and Barrett—have book deals with Penguin Random House, and yet only Breyer recused.

If there truly is “no way” to know about conflicts of these kind, then maybe the justices should simply avoid financial relationships that could trigger this type of conflict.

Instead, the justices have chosen simply to unilaterally exempt themselves from strict adherence with the recusal statute.

Those entrusted with positions of the greatest public power should naturally be subject to the highest degree of public scrutiny. Yet all too often we see the opposite framing—that those that have been installed in the highest positions of our public institutions should be granted the greatest deference in carrying out the responsibilities of that office.

For SCOTUS to maintain the full faith and confidence of the American people, it would do well to ensure that its good judgment extends to matters of judicial ethics as much as it does to judicial orders.

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