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Why Does Justice Stevens Recuse in Agent Orange Cases?
Legal Times
March 03, 2009
The Supreme Court on Monday declined to grant certiorari or review of three petitions placed before it involving claims made by American Vietnam War veterans, as well as residents of Vietnam, against Dow Chemical, Monsanto, and other manufacturers of Agent Orange.
The U.S. military used the herbicide ostensibly to defoliate Viet Cong hiding places during the war, and it has been linked to cancers and other illnesses in those who were exposed to it.
The cases denied Monday were Stephenson v. Dow Chemical, Isaacson v. Dow Chemical and Vietnam Association for Victims of Agent Orange v. Dow Chemical.
Justice John Paul Stevens recused in all three cases, as he did in another Agent Orange case (Haas v. Peake) in January, and in a precursor to the Stephenson case in 2003. In the 2003 case, Stevens' recusal resulted in a 4-4 tie that allowed veterans with more recent illnesses to continue to seek part of a 1985 settlement fund created to compensate Agent Orange victims. The Court's denials of review Monday appear to end those claims.
Stevens does not explain his recusals, and declined last month to comment on his January recusal. But some press reports at the time of his 2003 recusal, hinting at a possible explanation, noted that Stevens' son, John Joseph Stevens, was a Vietnam veteran who died of cancer in 1996. An obituary in a Florida newspaper at the time indicated that the young Stevens died Nov. 4, 1996 in Bradenton Beach at age 47. The story reported that Stevens "was a truck driver and an Army veteran of the Vietnam War," but offered few other details.
The justice has declined to discuss his son's death in connection with the recusal, so on Monday we asked Justice Stevens' daughter Susan Mullen about her brother's death. Mullen, special counsel at Cooley Godward Kronish in Reston, Va., confirmed that "he did die of a brain tumor, and he was in Vietnam," but added that "I have no way of confirming" whether that is the reason for her father's recusal.
Asked if her brother believed he was a victim of Agent Orange or had made an Agent Orange claim related to his illness, Mullen said "he got ill and died too quickly for him to get involved in any legal matters." Does she or her father or others in the family believe Agent Orange was the reason for his death? Mullen answered cautiously, "If you are asking whether I know if that is the reason for his recusal, the answer is, I don't."
This article first appeared on The BLT: The Blog of Legal Times.
