Three Supreme Court justices didn’t recuse themselves from cases in which they held stock in companies interested in the outcomes. Nearly 90 percent of the time, they sided with these businesses that filed ‘friend of the court’ briefs, a new report said.
Chief Justice John Roberts and Associate Justices Stephen Breyer and Samuel Alito own shares in several publicly traded companies, according to their 2014 financial disclosure reports. From July 2014 through June 2015, seven cases before the Supreme Court featured amicus curiae ‒ or friend of the court ‒ briefs by companies in which the three justices were stockholders. These filings allow parties that will be affected by a ruling, but are not directly involved in a case, to introduce “relevant matter not already brought to [the Court’s] attention,” the Supreme Court rules read.
Justices are not obligated by law to disclose if they have relation to parties that act as amici ‒ Latin for “friends” ‒ although they have to sit out if they are involved with one of the named parties.
None of the three men recused themselves from the bench in any of those seven cases. On top of not recusing themselves, the three justices “sided with their amici 89 percent of the time, or eight out of nine times,” an analysis by Fix the Court, a non-partisan organization dedicated to increasing transparency and accountability by the Supreme Court, found (emphasis original).
In two of the cases, Nautilus v. Biosig Instruments and Obergefell v. Hodges, companies the justices invested in filed briefs for both sides. In the former, Cisco Systems, in which Breyer owns up to a $100,000 stake, filed an amicus in favor of Nautilus, while Nokia, in which Breyer owned stocks until June 2014 and Roberts owns less than a $15,000 stake, filed on behalf of Biosig. The Supreme Court unanimously found for Nautilus in the patent case.
In Obergefell v. Hodges, in which the Supreme Court voted 5-4 to legalize same-sex marriage throughout the country, at least nine companies that were part of the three justices’ portfolios, filed amicus briefs supporting lead petitioner Jim Obergefell’s right to have his home state recognize his marriage to John Arthur, his partner of over two decades. Breyer once again sided with Cisco, while Roberts and Alito were part of the minority, siding against amici Microsoft ‒ in which Roberts owns a stake valued between $250,000 and $500,0000 ‒ and DuPont, Johnson & Johnson, JPMorgan Chase, MillerCoors, Oracle, PepsiCo and Procter & Gamble ‒ all of which are part of Alito’s stock portfolio.
In ABC v. Aereo, Roberts and five others sided with amicus Time Warner, in which he owns up to $500,000 in shares. In Teva Pharmaceuticals USA v. Sanoz Inc, Breyer and Roberts sided with the majority in favor of amici EMC Corp. and Hewlett-Packard. In Limelight Networks v. Akami Technologies, all three sided with Limelight after Cisco, Oracle (owned by Alito) and Microsoft filed briefs. In Alice Corp. v. CLS Bank International, Roberts ruled in favor of CLS Bank, which was supported by two companies in his portfolio, Microsoft and HP.
Justices, like all federal judges, already sit out cases in which they have a conflict of interest, including when they own a financial stake in one of the involved parties. During the Supreme Court’s last term, which ended June 30, Breyer recused himself from a patent case in which Cisco was a named party. Roberts and Alito, however, did factor into the Commil USA v. Cisco Systems decision, siding with Cisco and its amici HP and Oracle.
Critics, like Fix the Court, are asking justices to either recuse themselves from cases in which there is even a hint of a conflict of interest or to place their stocks in a blind trust controlled by a third party so that they do not know in what companies they are stockholders.
“Fix the Court is renewing its calls for Justices Roberts, Breyer and Alito to place their securities into blind trusts as long as they are on the bench,” the organization said. “We sent a petition signed by more than 2,400 activists to the court on July 20 asking just that.”
This solution would prevent the perception of a conflict, Fix the Court’s founder Gabe Roth told the New York Times
“There is no way to prove the conflict is real,” Roth said. “But it is the appearance of impropriety that is the problem.”
The legislative and part of the executive branches have already attempted to remove such appearances of impropriety. Under the provisions of the Stop Trading on Congressional Knowledge (STOCK) Act, passed in 2012, federal legislators, their aides and certain government agency officials are required to disclose their securities transactions within 45 days.