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In a 1952 Supreme Court decision, the late Justice Felix Frankfurter wrote, “It is desirable to state why one takes himself out of a case.” The justices on the current Court, however, rarely if ever explain their reasons for recusal. This regular feature by Supreme Court correspondent Tony Mauro will report on justices’ recusal actions, offering possible explanations based on financial, family, or other connections that are publicly known.
Recusals noted October 6, 2008 • Chief Justice John Roberts Jr. recused in the Court’s decision to deny review in Hollonbeck v. United States Olympic Committee, No. 07-1504, and Steinbuch v. Hyperion Books, No. 08-52. Roberts does not appear to have any conflicting stock ownership, but Hogan & Hartson, the firm where he was a partner until 2003, has counted among its clients the Olympic Committee and the News Corporation, the parent company of Hyperion. • Justice Stephen Breyer participated in the Court’s denial of review in Belcher v. Wells Fargo, No. 07-10764, Bush v. Wells Fargo, No. 07-11231, Tiber Shipping v. BP Oil, No. 07-1490, and Jonites v. Exelon Corp., No. 08-30. According to his financial disclosure form for 2007, Breyer owns stock in parties to these cases. The Court has confirmed that since 2007, Breyer has sold several of his stock holdings to avoid conflicts that require his recusal.
Recusals noted May 12, 2008 • Four justices recused in the Court’s consideration of the petition in American Isuzu Motors v, Ntsebeza. As a result, the Court lacked a quorum of six justices to grant or deny review of the case, which seeks compensation behalf of South Africans from more than 50 American and foreign companies for their role in perpetuating apartheid. The Court’s lack of quorum means the lower court ruling, which allowed the suit to proceed, is affirmed. In his latest financial disclosure statement Chief Justice John Roberts Jr. indicated he owns between $15,001 and $50,000 in stock of Hewlett-Packard, a named defendant. Justice Stephen Breyer reported owning stock in at least five defendant companies: between $50,001 and $100,000 of Colgate-Palmolive and Bank of America stock, and $15,001 to $50,000 in BP, IBM and Nestle stocks. Justice Samuel Alito Jr. disclosed ownership of less than $15,000 of Bristol-Myers Squibb Company stock, and $100,001 to $250,000 in Exxon Mobil Corporation, also defendants. The fourth justice to recuse, Anthony Kennedy, has a son Gregory who is a managing partner at Credit Suisse, another named defendant.
Recusal Noted on April 23, 2008 • Justice Stephen Breyer did not participate in oral arguments in Meacham v.Knolls Atomic Power Lab. According to the brief filed by the respondent, the lab is a wholly-owned subsidiary of Lockheed Martin Corporation. Breyer’s latest financial disclosure form indicates he owns between $15,001 and $50,000 of stock in State Street Bank, which owns 18.6% of Lockheed Martin Corporation’s common stock. Breyer first announced his recusal on Jan. 18, when the Court granted review in the case.
Recusal Noted on April 21, 2008 • Chief Justice John Roberts Jr. and Justice Breyer recused in the Court’s denial of review in Bouchat v. Bon-Ton Department Stores. Among dozes of appellees in the copyright infringement case are Time Warner, in which Roberts owns stock, and Wal-Mart Stores, in which Breyer owns stock, according to their latest financial disclosure forms.
Recusals Noted on March 24, 2008 • Justice Breyer recused in the denial of review in California Public Employees’ Retirement Corp. v. New York Stock Exchange. According to his latest financial disclosure form, Breyer owns between $50,001 and $100,000 of stock in Bank of America, one of the original appellees in the case.
Recusals Noted on March 17, 2008 • Justice Breyer took no part in the denial of review in Christiansen v. Bank of America. His latest financial disclosure form indicates he owns between $50,001 and$100,000 in Bank of America stock. • Justice Samuel Alito Jr. recused in the denial of review in Gupta v. Walt Disney World. According to his 2007 financial disclosure form, Alito owns up to $15,000 in Disney stock.
Recusal Noted on March 3, 2008 • Justice Breyer recused in the denial of review in Drain v. Accredited Home Lenders, Inc. One of the original defendants was Wells Fargo Bank, in which Breyer reports owning stock. • In Warner-Lambert v. Kent, the lower court ruling was affirmed by an equally divided Court, with Chief Justice Reports recusing. See Sept, 25 entry below.
Recusal Noted on Feb. 19, 2008 • Chief Justice Roberts and Justice Alito took no part in the denial of review in All Computers Inc. v. Intel Corporation. In 2007 Roberts reported owning between $50,001 and $100,000 in Intel stock.
Recusal Noted on Jan. 22, 2008 • Justice Anthony Kennedy did not participate in the denial of review in Regents of University of California v. Merrill Lynch. One of the appellees is Credit Suisse, where Kennedy’s son Gregory is a managing partner.
Recusal Noted on Jan. 7, 2008 • Chief Justice Roberts and Justice Breyer recused in the denial of review in Motionless Keyboard v. Microsoft. Roberts reported owning between $100,001 and $250,000 in Microsoft stock in 2006.
Recusals Noted on Dec. 3, 2007 • Chief Justice Roberts took no part in the denial of review in Eichorn v. AT&T Corp. Among the appellees is Lucent Technologies, in which Roberts owns up to $15,000 in stock.
Recusals noted on November 26 , 2007 • Justice Breyer recused in the Court’s denial of review in Balal v. BP America. Breyer owns between $15,001 and $50,000 in BP stock, according to his 2006 financial disclosure form.
Recusals noted on November 13 , 2007 • Justice Alito recused in Lum v. Bank of America, a dispute over loan rates between a customer and several banks. Alito participated in ruling on the case at an earlier stage when he was a judge on the U.S. Court of Appeals for the 3rd Circuit
Recusals noted on October 29 , 2007 • Justice Alito recused in the Court’s decision to grant review in Exxon Shipping Company v. Baker, an appeal of punitive damages in the Exxon Valdez oil spill. In his latest financial disclosure form, Alito reported he owns between $100,001 and $250,000 in Exxon Mobil stock. • Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer recused in Montgomery Sibley v. Breyer, et al., an action against the justices for not ruling in an earlier case brought by Sibley, a D.C. lawyer. The mass recusals resulted in the lack of a quorum, which means that the decision in the court below is affirmed.
Recusals noted on October 15 , 2007 • Justice Breyer recused in the Court’s action scheduling oral arguments in New Jersey v. Delaware. The border dispute between the two states involves the plans of BP, the oil company, to build a natural gas transport facility near the Delaware River. In his latest financial disclosure form, Breyer indicated he owns between $15,001 and $50,000 in BP stock. • Justice Breyer also recused in the Court’s action denying review in Hill’s Pet Nutrition v. Isaacs. Breyer’s financial disclosure form indicates he owns between $15,001 and $50,000 in stock of Colgate-Palmolive, Hill’s parent company. • Justice Breyer also recused in the denial of review in Heath v. Lowe’s Home Centers. Breyer’s disclosure form reveals that he owns between $15,001 and $50,000 in Lowe’s Companies stock. • Justice Kennedy recused in the denial of review in Board of Education of Hyde Park v. Frank G., as he did in the case of Board of Education of the City School District of the City of New York v. Tom F. ( See Sept. 19.) Both cases involve reimbursement of private school tuition costs for special education for children. No financial or family conflict of interest can yet be determined that would explain the recusal.
Recusals noted on September 25 , 2007 • Chief Justice John Roberts Jr. and Justice Stephen Breyer recused in the Court’s grant of review in Morgan Stanley Capital Group v. Public Utility Dist. 1 and Calpine Energy Services v. Public Utility District 1. One of the intervenors in the Calpine case is BP Energy. Breyer’s financial disclosure form indicates he owns between $15,001 and $50,000 in BP. Roberts has holdings in energy funds, but no direct stock conflict was immediately apparent from his 2006 disclosure form. • Chief Justice Roberts recused in the Court’s action granting review in Warner-Lambert Co. and Pfizer Inc. v. Kent. Roberts’ 2006 financial disclosure form indicated he owns between $15,001 and $50,000 in stock in Pfizer.
Recusal action noted on September 20 , 2007 • Chief Justice Roberts indicated he is “no longer recused” in Stoneridge Investment Partners v. Scientific-Atlanta and Motorola. Roberts had originally recused, it appeared, because he owned stock in Cisco Systems, which owns Scientific-Atlanta ( see March 26). The fact that he rejoined the case suggests he sold the conflicting stock.
Recusal noted on September 19 , 2007 • Justice Anthony Kennedy announced he would recuse in the pending case Board of Education of the City School District of the City of New York v. Tom F. No financial or family conflict could be determined that would explain the recusal.
Recusals noted on June 25 , 2007 • Chief Justice Roberts and Justice Samuel Alito Jr. recused in the Court’s denial of review in Goodison v. Madonna. Also named as defendants in the copyright infringement case were the pop star Madonna’s entertainment backers, Warner Bros. and Walt Disney Pictures and Television. In 2006 Roberts reported owning between $250,001 and $500,000 in stock in Time Warner, the parent company of Warner Bros. Alito reported owning $15,000 or less in Disney stock.
Recusals noted on June 18 , 2007 • Justice Breyer recused in the Court’s denial of review in FIA Card Services v. West Virginia Tax Commissioner. According to his 2006 financial disclosure, Breyer owns between $50,001 and $100,000 in stock in Bank of America, which owns FIA Card Services. • Breyer also recused in the Court’s action in Spencer v. Wal-Mart Stores, and Israel Bio-Engineering Project v. Amgen. His 2006 financial disclosure form indicates Breyer owns between $15,001 and $50,000 in Wal-Mart stock and the same range in Amgen stock.
Recusals noted on May 29 , 2007 • Justice Breyer recused when the Court denied review in Alpha Telecommunications v. IBM Corp. In his 2006 disclosure form, Breyer reported owning between $15,001 and $50,000 in IBM stock.
Recusals noted on April 23 , 2007 • Justice Clarence Thomas recused himself in the Court’s denial of review in Burke v. Wachovia Bank. Thomas routinely recuses in cases involving Wachovia. Thomas does not explain his recusal decisions to the public, but Legal Times has confirmed that Thomas’ son, Jamal, works for Wachovia Securities in Richmond, Va. • Justices Stephen Breyer and Clarence Thomas recused themselves in the Court’s action denying review in Turnbaugh v. National City Bank of Indiana. Breyer reported last year that he owns between $50,001 and $100,000 in stock in National City Corp. Thomas appears to have no direct financial conflict, but the case raises the same issue that the Court decided April 17 in Watters v. Wachovia Bank, in which Thomas recused himself. Legal Times has confirmed that Thomas’ son, Jamal, works for Wachovia Securities.
Recusals noted on March 26 , 2007 • A seven-member Court will rule on Stoneridge Investment v. Scientific-Atlanta Inc. when the case is considered this fall. In announcing that it was granting review in the case, the Court said both Chief Justice John Roberts Jr. and Justice Breyer are recusing themselves. In his 2005 financial disclosure form, Roberts reports owning between $15,001 and $50,000 in Scientific-Atlanta stock. Breyer’s latest form reports that he owns between $15,001 and $50,000 in stock in Cisco Systems Inc., which is Scientific-Atlanta’s parent company.
Recusals noted on March 22 , 2007 • Justice Anthony Kennedy informed the Court that he “now realizes” he should have recused himself in Credit Suisse v. Billing, set for argument March 27. Kennedy’s son, Gregory, is a managing director at Credit Suisse in New York City. Chief Justice Roberts had already announced his recusal in the case. (See Dec. 7.) Following Kennedy’s announcement, Roberts announced he would rejoin the case. He gave no explanation.
Recusals noted on Feb. 20 , 2007 • Justice Breyer recused himself in the Court’s denial of review in Britton v. Aimco Sandalwood. Breyer reported last year that he received $1,000 or less in rental income from Aimco Properties, which owns and operates apartment properties.
Recusals noted on Jan. 22 , 2007 • Chief Justice Roberts did not participate in the Court’s denial of review in Korsinsky v. Microsoft Corp. According to his 2005 financial disclosure form, Roberts owns Microsoft Corp. stock valued between $100,001 and $250,000. • Justice Breyer took no part in the Court’s vote to deny review in Federico v. Bank of America. His 2005 financial disclosure form indicates Breyer owns between $15,001 and $50,000 in Bank of America stock.
Recusals noted on Jan. 19 , 2007 • Chief Justice Roberts did not participate in the Court’s decision to hear Office of Sen. Mark Dayton v. Hanson, involving a workplace discrimination lawsuit against a U.S. senator. Roberts was a judge on the U.S. Court of Appeals for the D.C. Circuit at earlier stages of the case and participated in several procedural orders in the case in 2005, though he left the appeals court before the case was argued and decided.
Recusals noted on Jan. 16 , 2007 • Justice Breyer recused in the Court’s decision to send MedImmune v. Centocor back to the Federal Circuit for decision in light of the decision in MedImmune v. Genentech, in which Breyer did participate. According to his 2005 disclosure statement, Breyer owns $15,000 or less of Centocor stock. • Breyer also recused in the denial of review in two IBM-related cases, Saville v. IBM and Cooper v. IBM Personal Pension. Breyer owns between $15,001 and $50,000 in IBM stock, according to his 2005 statement.
Recusals noted on Jan. 8 , 2007 • Chief Justice Roberts recused in the Court’s denial of review in In re Gyorgy Fodor, a copyright dispute between the filmmaker and Time Warner. In his 2005 financial disclosure form, Roberts indicated he owned between $100,001 and $250,000 in Time Warner stock.
Recusals noted on Dec. 11 , 2006 • In its ruling in BP America Production Co. v. Burton, the Court noted that Chief Justice Roberts and Justice Breyer recused. Roberts had ruled in the case in his former position as judge on the D.C. Circuit, and Breyer reported in his 2005 financial disclosure form that he owned between $15,001 and $50,000 in BP Amoco stock.
Recusals noted on Dec. 7 , 2006 • Chief Justice Roberts took no part in the Court’s grant of review in Credit Suisse First Boston Ltd. v. Billing. Among the appellants in the antitrust case, which involves underwriters of initial public offerings, are several underwriters in which Roberts holds some kind of financial interest, according to his 2005 disclosure form. Among them: Merrill Lynch, Pierce, Fenner & Smith; Fidelity; and Janus.
Recusals noted on Dec. 4 , 2006 • Justice Breyer recused in the Court’s denial of review in Able Building Maintenance Co. v. Board of Trustees. Breyer’s brother Charles, a district judge in the Northern District of California, ruled on the case at an earlier stage. It is customary for Breyer to recuse in cases decided by his brother.
Recusals noted on Nov. 27 , 2006 • Justice Breyer took no part in the Court’s decision to deny review in Hemphill v. Procter & Gamble. In his 2005 disclosure form, Breyer reported owning between $100,001 and $250,000 in Procter & Gamble stock. • Chief Justice Roberts recused in the Court’s denial of review in Microsoft v. Amado. Roberts reported in 2005 that he owned between $100,001 and $250,000 in Microsoft stock.
Recusals noted on November 13 , 2006 • Justice Breyer recused in the denial of review in Lewis Perdue v. Dan Brown, et al., a copyright dispute involving Dan Brown’s bestseller The Da Vinci Code. Perdue, the author who claims the book infringed on his earlier copyrighted work, sued Brown’s publisher Random House as well as Brown. Breyer does not appear to have any conflicting stock ownership, but his 2005 book Active Liberty was published by Knopf, a division of Random House. • Chief Justice Roberts recused in the Court’s decision to deny review in Mihretu Dasisa v. University of Massachusetts, et al. In this dispute with several universities over the cancellation of Dasisa’s student financial aid, one of the parties, California State University, is represented by Hogan & Hartson, Roberts’ former firm. The representation appears to date back to when Roberts was still at the firm.
Recusals noted on October 30 , 2006 • Justice Breyer recused in the denial of review in Collier v. Pruett, a dispute between a government employee and Wells Fargo Bank and other parties. Breyer has reported that he owns between $15,001 and $50,000 in Wells Fargo Bank stock. • Justice Samuel Alito Jr. took no part in the denial of review in Stolt-Nielsen v. United States. Alito heard oral argument in the case as a judge on the U.S. Court of Appeals for the 3rd Circuit, though he became a Supreme Court justice before the case was decided.
Recusals noted on October 16 , 2006 • Chief Justice Roberts recused in Coates v. Agilent Technologies and Yaffe v. Smith Barney Division of Citigroup. Roberts reported selling Agilent stock in 2005. His disclosure form indicates he owns between $15,001 and $50,000 in Citigroup stock.
Recusals noted on October 10 , 2006 • Chief Justice Roberts took no part in denying a motion in the pending case Wimmer v. Hewlett-Packard. On his 2005 disclosure form, Roberts reported owning between $15,001 and $50,000 in Hewlett-Packard stock. He also recused in action taken in Apotex v. Pfizer. He reports owning $15,000 or less in Pfizer stock. • Justice Breyer took no part in the denial of review in Sanders v. Boeing Co. and Aron v. Quest Diagnostics. He does not report any ownership of stock in either corporate respondent.
Recusals Noted on the Court’s First Order List of the New Term, Issued October 2 , 2006 • Chief Justice Roberts recused in the Court’s denial of review in Rationis Enterprises, et al. v. Hyundai Nipo Dockyard, et al. Among the hundreds of companies joining in the petition, which involves liability for a maritime disaster, is Lucent Technologies. Roberts reported in his latest financial disclosure form that he owns $15,000 or less in Lucent stock. • Justice Alito recused in 13 cases, apparently because of his involvement at earlier stages as a judge on the U.S. Court of Appeals for the 3rd Circuit. He joined the Supreme Court in January 2006. • Justice Breyer recused in several cases in which he owns stock in one of the parties. He took no part in the Court’s denial of review in Gallenthin Realty v. BP Products. According to his latest financial disclosure form, Breyer owns between $15,001 and $50,000 in BP Amoco stock. In the same disclosure form, Breyer reported he has a Bank of America checking account, which may explain his recusal in Ware v. FleetBoston. Bank of America is acquiring the successor corporation to FleetBoston. Breyer also recused in Sweatmon v. Wells Fargo Bank. He reported that he owns between $15,001 and $50,000 in Wells Fargo Bank stock. • Justice Thomas recused, as he has in the past, in cases involving Wachovia Bank ( Trumbull Investment v. Wachovia Bank) and United Healthcare ( United Healthcare of Ohio v. Academy of Medicine). His disclosure form does not report any financial connection to either company.
Tony Mauro can be contacted [email protected]. Readers and interested parties are invited to provide additional information that would explain or shed light on Supreme Court recusal decisions.

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