Among the many services provided by Fix the Court is the annual recusal report that digs into Supreme Court recusals to figure out what’s caused the justices to sit out big cases throughout the year. Or, more troublingly, what cases they didn’t sit out that they absolutely should have.
Before getting rolling on this though, this is a good time to remind everyone that this project that Fix the Court undertakes every year doesn’t have to be the guessing game that it is:
Three leading U.S. House members introduced a bill in February that would require the court to “publish timely notice of [a justice’s] disqualification on the website of the court, with a brief explanation of each reason for the disqualification.” But until recusal explanations are signed into law, we’ll try to let you know why the 140-240 annual SCOTUS step-asides are occurring.
So hopefully we’ll one day have an official report.
The good news in this report is that, unlike in the past, Fix the Court couldn’t find any instances where a justice failed to recuse themselves when they clearly should have. The one quasi-exception to this was Justice Sotomayor’s participation in the faithless elector case Secretary of State v. Baca through the cert stage where her friend, Polly Baca, was a named party. Though interestingly, Polly Baca wasn’t the Baca of the caption, which was Michael Baca. In any event, Justice Sotomayor formally recused herself before the merits stage, but this is the closest Fix the Court estimates we came to a clearly missed recusal, which is pretty good.
One gray area case involved a lawsuit against Penguin Random House. Breyer recused himself for owning stock in a company founded by his wife’s family that used to own Penguin. Sotomayor and Gorsuch did not recuse themselves even though both published their books through the publisher and receive royalties. It’s a less clear-cut question for the two justices because their contractual relationship with the company doesn’t give them a direct financial stake by any means, but Fix the Court’s position is that receiving significant payouts from a single source should warrant recusal.
Another iffy conflict arose from a Tenth Circuit death penalty appeal that Justice Gorsuch dutifully sat out based on his old job. But the appeal was eventually resolved based on the result of McGirt v. Oklahoma, which Gorsuch wrote. So, indirectly, he did participate in the case. That may be a bit of 3D Recusal Chess — in this specific instance it would be a bit extreme for Gorsuch to never address these issues because it might implicate another former matter — but it’s a circumstance the justices should be mindful of since the whole point of this exercise is to avoid even the slightest appearance of impropriety.
Beyond that everything mostly went as expected. Justices sat out cases involving stock ownership, their own prior work, and relationships with named institutions named. Breyer continues to recuse from cases coming from his brother’s courtroom. The report flags future Facebook litigation as an area to watch because one of Kavanaugh’s bros is Joel Kaplan, Facebook’s vice president of global public policy. And if you have any idea why Breyer recused in Erin Capron et al., v. Massachusetts Attorney General, let Fix the Court know because that’s the only recusal they can’t pin down.
Check out the full report.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.