Why Do the Justices Keep Forgetting Their Conflicts of Interest?

This is the third term in a row in which a justice has heard arguments in a case and then later realized he or she had a conflict that by law required a recusal. It's embarrassing, but there's a solution.

All nine justices have stepped aside, or “recused,” from cases from time to time due to a conflict of interests. Many of these are not preventable; for example, Justice Alito steps aside when his sister, a labor lawyer, is involved in a high court case, and Justice Breyer does the same when his federal judge brother was involved at an earlier stage. (We’d like the justices to publicize their reasons for recusal, and until they do, we’ll publish periodic reports where we seek out their reasoning.)

There are other conflicts that should be minimized, such as ownership of stocks in individual companies. After all, when a justice steps aside from a case due to any conflict, there’s the potential for a 4-4 tie, which means everyone’s time is wasted.

We believe there’s no reason for the justices to own common stock in companies that may easily find themselves before the justices. To fix this, the justices should be required to establish blind trusts, which would give the justices the ability to keep a foothold in the market through a wide variety of other financial instruments while tamping down the notion that they’re not fully impartial when deciding cases that involve business interests.

If for some reason the justices believe that creating a blind trust would be too onerous, then at the very least they should divest from all of their individual conflict-inducing stock holdings.

Why Do the Justices Keep Forgetting Their Conflicts of Interest?

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