From Business Insider:
Two Supreme Court justices did not recuse themselves from cases that arose before the court involving their book publisher, Penguin Random House, according to a recent CNN report.
There have been two cases that came before the Supreme Court involving publishing conglomerate Penguin Random House. In both situations, the Supreme Court declined to take on the copyright infringement cases, allowing the publisher to win at a lower court level.
Liberal Supreme Court Justice Sonia Sotomayor, who was confirmed in 2009, was on the high court during both cases, which occurred in 2013 and 2019-2020. Conservative Justice Neil Gorsuch was confirmed in 2017 and was also a member of the Supreme Court during the second case.
Sotomayor and Gorsuch had both signed major book deals with the publisher before the cases occurred, and both justices declined to recuse themselves from the cases involving Penguin Random House. Former Justice Stephen Breyer, who had reported receiving royalties from the publisher, recused himself from each of the cases.
According to Sotomayor’s financial disclosures, as CNN reported, she’s made approximately $3.6 million in royalties and advances for the several books she’s published under Knopf Doubleday Publishing Group, which is part of Penguin Random House.
As for Gorsuch, his financial disclosures note he’s made at least $655,000 from Penguin Random House over the past few years from his book, “A Republic, If You Can Keep It.”
. . . .
“The Supreme Court should have a code of ethics to govern the conduct of its members, and its refusal to adopt such standards has contributed to eroding public confidence in the highest court in the land,” Van Hollen said. “It is unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”
Link to the rest at Business Insider
PG suggests this is not a gray area. Justices who have received large payments for their books should absolutely recuse themselves in cases that might impact the finances of their publishers.
While PG may not agree with Senator Chris Van Hollen on some issues, but he firmly supports actions that will require recusal of justices who have received financial benefits of more than a trivial amount from a person or entity who has a matter before the Supreme Court.
For those unfamiliar with US appellate court practices, when a member of the Supreme Court recuses her/himself from a particular case, the Chief Justice or, if the Chief Justice has recused from a matter, the senior justice on the Court appoints another federal judge, typically a judge from one of the thirteen Circuit Courts of Appeal who have been appointed in the same manner as the members of the Supreme Court have been.
In PG’s opinion, some of the Circuit Court judges are more competent at their profession than some of the Supreme Court justices are.
Now, I thoroughly detest Justice Sotomayor. Nor am I a fan of Justice Gorsuch.
But, in their defense: Is a request for certiorari actually a case? As I understand it, there are no arguments by lawyers, other than contained in their briefs. There is apparently a conference before the session where the Justices discuss which cases to schedule – where, conceivably, a “compromised” Justice could successfully argue that the request should not be granted, tipping the decision of a Justice that would otherwise be “number four.” That is the only place where I can see recusal possibly being needed. Otherwise, as Mike Hall notes, a recusal is exactly the same as a vote against the grant. “Tails, you lose, heads I win.”
This is quite unlike the situation in Kelo – where newly seated Justice Sotomayor did not recuse herself from the hearing and decision, even though she had argued the case before the lower courts. (Just one of the reasons for my opinion of her.)
A request for certiorari is a “case or controversy” as the consensus understanding of Article III § 2 believes. Certainly it is not fully developed, with witnesses and lawyers and reporters and pundits. Neither is a motion to dismiss in small claims court, or a motion for judgment on the pleadings. Neither, more to the point here, are summary reversals from the Supreme Court itself; here’s an example:
Tolan v. Cotton, 572 U.S. 650, ___ (2014) (per curiam‡). (Sorry about the italics; this is the moronic graphic designer’s choice — not PG’s choice — to always set <blockquote>ed material in italics, which cannot be undone without breaking something elsewhere on the page. And necessarily lose anything that is in italics in the original.)
My point is only that saying “it’s not a case until certiorari is granted” misuses a technical term that really matters to Supreme Court (and, indeed, all federal) proceedings. In the abstract — and even in reality — it may make more sense to proceed otherwise, perhaps with lawyerly argument before a screening panel, perhaps with black-powder pistols at ten paces, perhaps with rock-paper-scissors. But that’s not the rules we have; until they’re validly changed, we’re stuck with the rules we have. (That’s the crux of the rule of law.)
Most experienced counsel will tell you that maybe 2% of cases are won at oral argument; maybe 10% of cases are lost at oral argument†; and the rest are won or lost on the papers. So purely on-paper submissions account for 88% (or more!) of the final result anyway…
† I’ve won more than one by keeping my mouth shut, and implicitly allowing the opponent the rope with which to hang himself (it was men all four times). In one of them, my complete argument was “Your Honor, we stand on the papers. If you have no issues that you wish clarified, we respectfully request that defendant’s motion be denied for the reasons stated in the papers.”
‡ Means “unsigned opinion for the entire Court.”
I find the complaints in this case somewhat confused. The publishers won in the lower courts so their only worry would have been if certiorari had been granted. This would have required at least four justices to vote in favour. Since, as CEP notes, a recused justice does not have a substitute a recusal is equivalent to a vote against the grant. If the concern is that the receipt of royalties results in prejudice in favour of the publishers then recusal is as much an act in their favour as voting against the grant. I guess that it stops them from persuading other justices to vote against certiorari but also removes the possibility that they might actually favour the appeal.
Even if SCOTUS actually takes the case a recusal does not hurt the publishers, rather it favours them as it ensures that the justice cannot vote in favour of the appeal. Of course, if the publishers had lost in the appeal court then a failure to recuse does become significant and not just a question of appearances.
How many Supreme Court Justices can dance on the head of a pin?
(1) I beg to differ with PG on the effect of recusal. Unlike all other federal appellate courts (and some, but not all, state supreme courts), a recused justice for a particular matter is not replaced. That sometimes results in “affirmance by an equally divided court” (usually 4-4, but on occasion 3-3) — and very early after taking the bench, one of the newly appointed justices (I believe it was Kavanaugh, but it may have been Gorsuch) wrote as the single justice for the entire court that it could not achieve a quorum of five justices because all eight previously-sitting justices had recused, and therefore denied certiorari and allowed the appellate opinion to stand.
Whether the system should be as PG describes it is an entirely different question.
(2) What I find darkly, darkly amusing about the public handwringing over recusals — and recusals bloody well should be much more common than they are — is that the media never recuses itself. However much I respect (and at the time respected) Reporter X’s years of reporting on the Supreme Court, she never should have written on Tasini… as she was a New York Times reporter (remember who the loser was? vbeg) who was also directly affected in her personal interests by the outcome of the case. And so on.
The appearance of a conflict of interest is a conflict of interest, until cleared by a competent inquiry. That’s the military officer’s rule; that it fails on occasion makes it no less appropriate a rule, and should also apply to judges.
Good clarification, C.
Like many lawyers and some Supreme Court Justices, at times the fog rolls in over my brain.
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
Sonia Sotomayor
“In PG’s opinion, some of the Circuit Court judges are more competent at their profession than some of the Supreme Court justices are.”
Which is why they’ll never be nominated.