Does Chief Justice Roberts Like Duck Hunting?
February 10, 2009, 10:02 pm
Filed under: Ian | Tags: ,

Chief Justice Roberts has a bit of an ethical dilemma.  Arguably the most important case this Supreme Court term is Wyeth v. Levine, which asks whether a drug company is immune from accountability under state law so long as it complied with federal drug laws and FDA regulations.  Should the Court rule in favor of the drug company, it could leave patients who are poisoned by a defective drug completely powerless to hold the manufacturer accountable; drug companies could have total lawsuit immunity.

Roberts’ ethical dilemma is that, although he doesn’t own any stock in Wyeth, the defendant in this case, he does own stock in Pfizer, which just announced that it plans to acquire Wyeth.  Thus, the Court’s decision in Wyeth could have a direct impact on the value of Roberts’ Pfizer stock.

Because Roberts is one of the most, if not the most, pro-corporate members of the Supreme Court, Wyeth very much does not want him to recuse himself.  So their attorney recently sent a letter suggesting that, because Wyeth likely won’t be acquired until after the Court hands down a decision, there’s nothing to see here and the justices can just go about their business.

The Chief Justice, to his credit, has recused himself from cases involving Pfizer in the past.  Hopefully he’ll have the good sense to do so in Wyeth.


4 Comments so far
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You raise an excellent point that would be interesting to see you you expand upon. Right now, each Justice decides whether to recuse him/herself in any given case, a point you alluded to in your title.

Slate’s Emily Yoffee explains that despite the existence of standards for recusal in federal law, each Justice is the ultimate arbiter of whether to step down.

Besides hortatory admonitions such as that contained in your post, is there any mechanism that makes sense to institute that would review these potential conflicts of interest? (I put aside the only obvious potential review mechanism — impeachment — as being an unlikely and unusually destructive check on this power.)

Howard Bashman suggests in an opinion piece on Law.com that recusal is only necessary when the final outcome is a 5-4 ruling. He adds that when the ultimate result is in the balance, Congress allow a lower court judge to sit by designation in the Supreme Court. (His system contains many more details).

It seems to me that his suggestion creates two problems:
(1) It still doesn’t address the (in)voluntary recusal issue in the first place; and
(2) Even if a Justice doesn’t provide the “winning” vote, that doesn’t mean that s/he did not play a role in the development of the final opinion. Often times, the most clever Justices create the persuasive arguments and coalitions, and are not necessarily identified as writing the final opinion itself.

What do you think? Should recusal be compulsory, or at least subject to oversight? I’m looking forward to your thoughts.

PS — I’m glad to see that you’re back to blogging.

Comment by daniel


You’ve given me a lot to think about, and more than I can ponder this late at night, but I wanted to respond to your question of whether or not a judge should recuse himself if the result would not be 5-4.

As we all learn in law school, it is not the result that really matters when you read a case, it is the court’s reasoning. Landmark doctrines are built upon a single sentence tucked into a Supreme Court opinion. Fortunes are lost because of a footnote.

While I’ve never witnessed the inner workings of the Supreme Court first hand, I did spend a year clerking for a U.S. Court of Appeals judge. That, of course, meant that my judge normally sat on three-judge panels, so two votes were required to obtain a majority.

In my experience, judges don’t like it when their colleagues dissent from their opinions, even in part, and some judges would bend over backwards to accommodate one of their colleagues concerns—even when the third member of the panel had already given them the second vote they need to form a majority. Negotiations over language are common. Single words could sometimes be contentious, and new sentences, paragraphs or even entire sections could be inserted into an opinion at a single judge’s request.

All of this is to say that I imagine the dynamic on the Supreme Court is quite similar. Even if Chief Justice Roberts is the seventh or eighth vote supporting the result in a particular case, his input will be taken seriously by his colleagues, and they may very well insert very significant language simply at the Chief Justice’s request.

So I don’t think that judges should recuse themselves only when their vote would be decisive. Even if Roberts doesn’t write a majority opinion, he can still play a role in shaping how that opinion develops.

Comment by Ian


I think there’s still an additional twist here. Supreme Court Justices are in the uncommon position of deciding (in the vast majority of instances) whether they will hear a case. It only takes 4 of the 9 justices to grant certiorari.

I do not know to what extent the Justices discuss the cases in which they wish to grant cert. Clerks, of course, play a major role in making recommendations as to how each Justice should proceed. However, we have here a situation where someone who is (or should be) recused from judging a case gets to decide whether the Court will hear the case in the first place.

As a practical matter, it seems unlikely (and pointless) for a Justice to vote to grant cert on a case on which he would not sit. But because the Justice has a say in the cases that come before the Court, he can play a role in persuading the other Justices to also vote to deny cert until a case comes along on the same issues where there is no question of recusal. Those situations would postpone defeat and possible ensure a majority.

Or more insidiously, four Justices could vote to accept a case where one (or more) of their colleagues must recuse themselves, potentially swinging the majority to the other side, or at least deferring the issue until a later Court can decide, also possibly in their favor.

I admit that these scenarios are far fetched, and the Court’s collegiality probably precludes this, but it also logically follows as a consequence of a voluntary recusal system.

Are there any other strange effects that you can see from the uncommon nature of the High Court?

Comment by daniel

I’m pretty sure that the Justices routinely recuse themselves from considering cases even before the Court agrees to hear the case. The standard disclaim appended to an opinion where a justice did not participate is “Justice X took no part in the consideration or decision of the case,” which implies that they did not involve themselves in any part of the Court’s deliberations, including at the conference stage.

As a practical matter, I don’t know if a recused justice’s clerks recuse themselves from drafting cert pool memos in the case which triggered the justice’s recusal, but I would imagine that they do.

Wyeth is a bit of an unusual case in that Chief Justice Roberts’ conflict of interest arose after the case was argued, but I don’t see any problem with him participating in the Court’s deliberations before he could have known that a conflict would arise.

With respect to the question about justices strategically voting to grant cert when one or more of their colleagues are recused, I suppose it is possible, but probably unlikely. The justices have to live with each other for a long time, and a minority justice who plays games with the rules is likely to be on the losing end in the future, because they are in the minority.

I’m also pretty sure there is precedent for this kind of thing. While I can’t remember the case name or what it was about, there was a brief period in 1972 when the Court had only seven justices, and during this period the Court handed down a 4-3 decision. Shortly thereafter Justices Powell and Rehnquist were appointed, and the Court granted cert on another case presenting the same issue. That case went 5-4 in the other direction, and I believe that the majority opinion specifically stated that the reason for the flip-flop is because the Court thought it was inappropriate to resolve major questions of law while its membership was in flux. A similar notion could easily apply in a case where recusals change the outcome of the case.

I’ll also note that the Roberts Court is hardly concerned with Stare Decisis, as Dr. Leroy Carhart found out the hard way.

Finally, with respect to strange effects, I’m going to punt on this question b/c it is late and I am tired, but I will say that there are all kinds of strange effects that can arise from a Court which can overrule any previous decision on a whim.

Comment by Ian

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