THE PLANK MAY 12, 2008
The Supreme Court announced today that for the first time in recent memory, it will be unable to consider a case because too many justices recused themselves due to conflicts of interest. The case asked whether lawsuits based on the 1789 Alien Tort Claims Act can proceed against companies who did business with Apartheid-era South Africa. (The lawsuits will go forward, since the opinion from the Second Circuit Court of Appeals will now be the final word on the matter.) The Supreme Court was unable to weigh in because it lacked the six justices needed for quorum:
Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr. could not take part because they own stock in some of the companies involved. Justice Anthony M. Kennedy does not, but his son Gregory is a managing director at Credit Suisse, one of the defendants, so he recused himself as well.
Kennedy's excuse sounds pretty solid. The others, I'm not so sure about. It isn't incredibly common for justices to have to recuse themselves because of stock holdings, but it's at least the second time this term the problem has come up: Justice Alito had to recuse himself from the Exxon Valdez case because of his Exxon stockholdings. Eugene Volokh addressed this issue when the Exxon case was argued, and in light of today's annoucement it becomes more pressing. Wouldn't it be reasonable for justices to be expected to put their assets into a blind trust upon taking office? Or, at least, to sell their stock in the companies in question at market rates, rather than recuse themselves? If you're going to be on the Supreme Court, surely you should be expected to be available to participate in as many cases as possible, unless conflicts of interest are genuinely random and unavoidable, like Kennedy's here.