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Supreme Court Justice Recusals Attract Accusals

The possibility of a 4-4 ruling in the Exxon Valdez punitive damages case as a result of Justice Alito's recusal (he holds stock in Exxon) has triggered a discussion around the blogosphere over whether there's a better way for the Court to handle recusals so as to avoid the possibility of a tie vote (in which case, the appellate court's ruling stands).

Eugene Volokh believes that the recusal issue deserves renewed attention because tie votes produce a "pretty bad result":

An important issue will be unresolved, the Justices' time will be wasted, the parties' money will be wasted, and all over what is likely just a few thousand dollars' worth of investment.

Volokh suggests that Justices be prohibited from owning a stake in the parties' stock, even if that means selling the stock once cert is granted. 

Professor Bainbridge points out, however, that Justices can recuse themselves, and then "un-recuse" themselves by selling any stock interests that they hold in party and re-enter the case.  As Bainbridge explains, a specific Tax Code provision allows judges to divest an asset causing a conflict of interest so as to hear the case and avoid paying capital gains so long as any gains are deposited into a Treasury security or an approved mutual fund.  Bainbridge wonders why Alito didn't take advantage of these provisions to sell his Exxon holdings so that he could hear the case.

Howard Bashman offers another suggestion in the comments section at Volokh. Bashman recognizes that not all recusals are driven by conflicts caused by financial interests; frequently, the Justices must recuse themselves where, for example, they have  a personal or family relationship with one of the parties or their counsel.  Obviously, these types of conflicts are not cured by divestiture.  So, to avoid the possibility of a 4-4 tie, Bashman proposes legislation or a judicial rulemaking to  authorize the U.S. Supreme Court to randomly tap a non-recused judge from the U.S. Courts of Appeals to replace a recused Justice in a case in which certiorari has been granted.

Posted by Carolyn Elefant on February 28, 2008 at 02:51 PM | Permalink | Comments (0)