New York Times

On Conflicts, Clumsiness by the Court

January 10, 2017

by Adam Liptak

WASHINGTON — On Dec. 6, Chief Justice John G. Roberts Jr. asked a half-dozen probing questions during the argument of a patent case involving Life Technologies, which makes genetic testing kits. Later that week, if the court followed its usual practices, he met in private with his colleagues to discuss the case and cast his vote. If he was in the majority, as he is most of the time, he assigned the majority opinion to himself or to another justice.

On Wednesday, about a month after all of this, the Supreme Court announced that Chief Justice Roberts “has concluded that he should not continue to participate in this case.” He had discovered, the court said, that he owned 1,212 shares of the parent company of Life Technologies.

Corporate relationships can be tangled, but this one was relatively straightforward, and it was disclosed on the second page of the petition seeking review in the case. “Life Technologies Corporation is an indirect wholly owned subsidiary of Thermo Fisher Scientific Inc.,” the petition said. The statement was repeated on the second page of the company’s brief on the merits of the case.

Thermo Fisher Scientific was among the chief justice’s larger holdings. According to his latest financial disclosure report, released in June, his shares were worth between $100,001 and $250,000. At Friday’s closing price, the shares were worth about $178,000.

Still, according to a letter from a court official to lawyers in the case, “the ordinary conflict check conducted in the chief justice’s chambers inadvertently failed to find this potential conflict.”

The conflict seems more actual than potential. Both the Code of Conduct for United States Judges, which does not apply to the Supreme Court, and a federal law that does say judges should disqualify themselves from cases in which they or a member of their family have “a financial interest in the subject matter in controversy or in a party to the proceeding.”

Only three members of the court — Chief Justice Roberts and Justices Stephen G. Breyer and Samuel A. Alito Jr. — appear to own individual stocks. In an era when potential executive branch conflicts are drawing intense scrutiny, those justices might consider setting a different tone for the judicial branch by selling their stocks and buying, say, index funds.

The letter said the chief justice was recusing himself “consistent with the Code of Conduct,” and it did not mention the federal law. That may be because the chief justice is not prepared to concede that Congress can tell the Supreme Court what to do in such cases. In his 2011 annual report on the state of the federal judiciary, he wrote that “the limits of Congress’s power to require recusal have never been tested.”

Oversights happen, even at the Supreme Court, and Chief Justice Roberts surely acted in good faith and took action as soon as he learned about the matter.

Still, it was the third misstep of this sort by a justice in the last 15 months, according to Fix the Court, an advocacy group that seeks more openness at the Supreme Court. The pattern suggests that, at a minimum, more care is required.

The latest episode puts the court in a ticklish spot. Just months ago, it ruled that a decision tainted by a conflict of interest for a single Pennsylvania Supreme Court justice required reconsideration, even though the ruling had been unanimous.

“A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part,” Justice Anthony M. Kennedy wrote for a five-justice majority in the case, Williams v. Pennsylvania.

Justice Kennedy acknowledged that a rehearing without the affected justice was an imperfect solution. “Judges who were exposed to a disqualified judge may still be influenced by their colleague’s views when they rehear the case.”

But a partial cure, Justice Kennedy wrote, was better than none.

“Allowing an appellate panel to reconsider a case without the participation of the interested member,” he wrote, “will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first deliberations.”

The Pennsylvania case arose from Chief Justice Ronald D. Castille’s failure to recuse himself from a capital case in which he had, when he was Philadelphia’s district attorney decades before, authorized his staff to seek the death penalty.

That is nothing like Chief Justice Roberts’s financial conflict in the patent case. But the principles outlined in Justice Kennedy’s majority opinion were general ones.

Chief Justice Roberts dissented in the Pennsylvania case, saying Chief Justice Castille’s failure to disqualify himself may have been unwise but did not violate the Constitution’s due process protections. As a consequence, Chief Justice Roberts did not address how courts should address proceedings tainted by conflicts.

One way to do so in the patent case, Life Technologies v. Promega Corporation, No. 14-1538, would be to dismiss it while allowing Life Technologies to refile its petition and seek review from a court in which Chief Justice Roberts is recused from the outset. For all we know, after all, the chief justice supplied the fourth vote needed to hear the case in the first place.

Stephen Gillers, an expert in legal ethics at New York University’s law school, said the lawyers in the case could decide whether to seek such relief.

“From the public perspective, a do-over with Roberts sidelined is the right outcome,” Professor Gillers said. “The public has an interest in a ruling uninfluenced by Roberts’s participation.”

“But the public doesn’t have a right to be heard,” he added. “The lawyers have to seek that remedy or they will have waived it. Of course, nothing stops the remaining justices from ordering a do-over in the public interest.”