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Recent Times a Justice Failed to Recuse Despite a Conflict of Interest

For a list of the justices’ ethics lapses that go beyond missed recusals, see this link, last updated on Aug. 5, 2023.

Missed recusals since FTC’s founding (Nov. 2014) in order of the most recent:

1. OT22: Justice Alito is participating in 22-800, Moore v. U.S., a case on whether the government can tax unrealized gains — e.g., profit that’s reinvested into a business — as income. An attorney on the cert. petition, David Rivkin, Jr., interviewed Alito for the Wall Street Journal in April 2023, when the petition was pending, and again in July 2023, just after the petition had been granted. (Argument will likely be late fall or winter.) Reported in a letter from Sen. Dick Durbin to Chief Justice Roberts on 8/3/23; no further action taken.

2. OT22: Justice Thomas failed to recuse from the determination of 22A350, Ward, et al., v. Thompson, a petition trying to stop the Jan. 6 Committee from obtaining the metadata of Arizona GOP officials’ phone records. Thomas’ wife Ginni was in touch with Arizona Republicans in the aftermath of 2020 election, trying to overturn its result. Reported on 11/14/22; no further action taken.

3. OT22: Justice Jackson failed to recuse from the determination of 21-1503Lloyds Banking Group plc, et al., v. Berkshire Bank, et al., a petition concerning bank collusion and interest rates during the Great Recession. According to Jackson’s 2022 financial disclosure, she holds four Charles Schwab funds, and ownership of Schwab funds appears to be the reason that Chief Justice Roberts and Justices Kagan and Gorsuch all recused from this petition determination.

FTC brought this to the Court’s attention on Oct. 13, 2022, and the PIO wrote back, “[A]n internal conflict check that was undertaken prior to the September 28 Conference determined that Justice Jackson did not have a conflict of interest in No. 21-1503.” So, two possibilities: either something besides Schwab that we can’t figure out caused the Roberts, Kagan and Gorsuch recusals, or Jackson views her recusal responsibilities differently from her colleagues. Missed recusal (cert. denied) on 10/3/22; reported 10/13/22; negative response from SCOTUS on 10/13/22.

4. OT21: Justice Thomas failed to recuse from the determination of 21-1389, Bates v. Trump, another petition related to the Jan. 6, 2021, insurrection. (See additional details below.) Reported on 6/28/22; no further action taken.

5. OT21: Justice Thomas failed to recuse from the determination of 21A272, Thompson v. Trump, despite his wife Ginni having a §455(b) “interest” in the outcome of the proceeding. What’s more, her election subversion movement would have necessarily led to the Supreme Court, where Justice Thomas would have been asked to rule. Plus, Justice Thomas may have material knowledge of the facts in one or more of the Jan. 6 cases by virtue of his wife’s involvement, and there might be more texts and emails out there that the Jan. 6 Committee would come into possession of. Reported on 3/24/22; no further action taken, though the non-recusal was mentioned at the April 27 House Judiciary hearing at which FTC’s Gabe Roth testified.

6. OT20: Justices Breyer, Sotomayor and Gorsuch have book deals with Penguin Random House, with all three earning big bucks from these contracts. Justices Sotomayor and Gorsuch failed to recuse in 20-1227, Whitehead v. Netflix, et al., where one of the respondents was an “Unnamed Random House Publisher.” Breyer recused, though not because of his writing but because of his wife’s family’s publishing company, Pearson, had until 2020 owned a large stake in PRH, and it appears Breyer forgot to update his conflicts sheet. Though the “financial interest” language in the federal recusal statute is typically interpreted to mean stocks, all three — and now Justice Barrett, who has her own PRH book deal — should not be participating in PRH cases. Reported on 6/1/21; no further action taken.

7. OT20: Justice Kagan failed to recuse in 19-720, U.S. v. Briones, Jr., a juvenile life sentence case remanded to the Ninth Circuit on 5/3/21 in light of  the Court’s ruling in Jones v. Mississippi the previous month. Kagan previously participated in an earlier version of this case, 09-1044, Briones and Briones, Jr., v. U.S., when she was U.S. solicitor general. @FedJudges identified this error on Twitter, and FTC e-mailed the SCOTUS clerk on 5/6/21. That afternoon, the Court noted the error in a letter to the 19-720 litigants.

8. OT20: Justice Barrett failed to recuse, or failed to note her disqualification, in 20A150, an application in a Trump-era public charge rule case, Texas, et al., v. Cook County, et al., that was denied on 4/26/21. The non-recusal seemed odd given that Barrett twice participated in a Seventh Circuit version of this case. With help from three SCOTUS reporters, FTC was able to bring this error to the attention of the SCOTUS clerk’s office on 4/27/21, and that afternoon, the Court noted the error (p. 2) —that, in fact, Justice Barrett “took no part in the consideration or decision of this application.”

9. OT20: Americans for Prosperity spent more than $1 million to get Justice Barrett confirmed, and Barrett did not recuse from 19-251, Americans for Prosperity Foundation v. Bonta, argued on 4/26/21. FTC did not take further action on this, save writing an op-ed.

10. OT20: Justice Alito failed to recuse in 20-6256Valentine v. PNC Financial Services, et al., where one of the “al.” was PNC Bank, whose shares Alito owns. Missed recusal on 1/11/21 (cert. denied); reported 2/4/21; no further action taken.

11. OT19: Penguin Random House was a respondent in a copyright infringement suit at SCOTUS, 19-560, Nicassio v. Viacom International and Penguin Random House, and only Justice Breyer recused, not Justices Sotomayor and Gorsuch. 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. Justice Sotomayor also should have recused in 12-965, Greenspan v. Random House, Inc., et al. (cert. denied, 4/15/13).

12. 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.; 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 thfe 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.

13. OT18: Chief Justice Roberts and Justices Thomas, Ginsburg, Breyer, Alito and Sotomayor failed to recuse in 18-5810Rivera v. U.S., even though they were named in the petition by the appellant. As above, the justices would probably claim that there was “no way” of knowing they were named since the U.S. failed to file a response, but again, FTC finds that reasoning spurious, especially since Justice Kagan recused in the case twice. (The first Justice Kavanaugh recusal noted on the docket was a blanket one for all Oct. 9 orders due to his Oct. 6 confirmation.) Missed recusal on 10/9/18, and again for the rehearing petition, 1/14/19 (cert. denied both times); no further action taken.

14. OT17: Chief Justice Roberts failed to recuse in 17-1287, Marcus Roberts et al. v. AT&T Mobility, despite owning shares in Time-Warner, which had merged with AT&T four days prior (likely a SCOTUS conference day); missed recusal on 6/18/18 (cert. denied). FTC identified this conflict five months after cert. was denied, and no further action was taken.

15. OT17: Justice Kennedy failed to recuse in 17-269, 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.

16. OT16 and OT17: Justice Kagan failed to recuse in 15–1204, 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.

17. OT16: Justice Alito failed to recuse in 17-290, 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, and then unrecused 10/26/18 after he sold his shares.

18. OT16: Chief Justice Roberts failed to recuse in 14-1538, 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.

19. OT15: Justice Breyer failed to recuse in o. 14–840, 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.

20. OT15: Chief Justice Roberts failed to recuse in 14-972, 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.

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