I had noticed that Supreme Court justices were more frequently recusing themselves from cases, but it took the Washington Post to put it in context. It’s their many investments that are causing the problem. I should have known that spending all that time sitting around between cases would turns Roberts and his merry crew into daytraders:
The court said yesterday that it could not raise a quorum to consider review of a wide-ranging class-action lawsuit that accuses more than 50 U.S. businesses of helping South Africa’s former apartheid regime.
According to the court, only five of the nine justices could hear the case, and six are needed for a quorum. Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr. have holdings in some of the companies named in the suit. Justice Anthony M. Kennedy’s son works for another, Credit Suisse Group. He has recused himself in previous cases that involved the firm.
The case at hand is unusual, but recusals by the justices are becoming more common as the court’s docket includes an increasing number of business cases.
Roberts’s investments in Pfizer kept him out of a recent case involving the drug Rezulin. The eight remaining justices announced they were evenly split, which means the lower court ruling was affirmed without an opinion from the court.
Breyer sat out what was considered the court’s most important business case of the term, concerning investor lawsuits. Roberts was involved only because he took action to get back into the case — probably selling stock — after announcing his recusal. Alito’s holdings in Exxon mean eight justices will decide the decades-long punitive damages lawsuit over the Exxon Valdez oil spill.
Somewhat seriously, while this is amusing, the deeper issue is that business cases are tough to get to the Supreme Court at the best of times. If the result increasingly is inconclusive because so many Supremes can’t actually hear the case then that is a worrisome outcome.