Justice Stephen G. Breyer

Are justices of the U.S. Supreme Court gods, or men? There’s evidence on both sides. Their brilliant legal minds and dazzling résumés weigh in favor of deity designation. Their ability to make mistakes suggests that they’re mere mortals.

Supreme Court justices: they’re just like us! They get into accidents — as Justice Stephen Breyer did over Memorial Day weekend, while riding his bicycle near his home in Cambridge, Massachusetts. Justice Breyer broke his right collarbone in the incident — ouch (and more evidence to support my dislike of cycling).

This isn’t even the first vehicular mishap for one of the nine in 2011. As you may recall, Justice Antonin Scalia got in a car accident, back in March — and received a ticket for it.

Physical accidents involving federal judges might not be shocking; brainiacs aren’t known for their grace and agility. But ethical oversights might be more surprising.

Let’s look at the latest controversy involving Justice Samuel A. Alito Jr. — and whether the hubbub is justified….

Justice Samuel Alito

The story has been discussed all over the place. This seems to be the original report, from the Associated Press:

Supreme Court Justice Samuel Alito took part in a case over curse words on television involving ABC Inc. and other networks even though he owned stock in ABC’s parent, Walt Disney Co., at the time.

Alito said Tuesday that he owned around $2,000 in Disney stock when the court heard the case FCC v. Fox Television Stations in late 2008. ABC and the other networks also were parties to the case.

Alito said his participation was an oversight. He said aides who routinely check for conflicts in high court cases missed the Disney connection when they looked at the Fox case, even though ABC’s brief clearly disclosed Disney’s ownership.

Whoops. But did this de minimis financial interest affect how Justice Alito voted? Apparently not: Justice Alito voted with the majority, against ABC. And the issue won’t occur again, at least not with respect to ABC:

The FCC’s policing of the airwaves is again heading to the high court, also following a ruling for the networks. This time, Alito can take part without any worry as he sold his Disney stock last year.

The justice thinks he lost a few dollars on the deal. The issue arises now because the stock sale was disclosed in Alito’s annual financial report that was released Friday.

(Ah yes, the justices’ financial disclosure reports. The most delicious tidbit was Justice Sonia Sotomayor’s seven-figure book advance — read more from Adam Liptak.)

The federal conflict of interest law for judges says they should not hear a case if they have a financial interest, however small, in a party. The statute does not provide any penalty for violation.

The lack of penalties did allow Ashby Jones of the WSJ Law Blog to come up with this clever quip:

An apology rendered from a Supreme Court justice is like an apology rendered from God: You sort of appreciate it, until you remember that it comes with no repercussions.

But is this really a serious problem? I don’t think so. Justices aren’t going to cast their votes based on such minor financial connections; Justice Alito certainly didn’t in this case, voting against his own interest. And if justices are so unethical that they would change their vote in a case based on the effect on their pocketbooks, then we have bigger problems to worry about (and need to do a better job of picking justices).

In a 2003 speech at Hofstra Law, then-Judge (now Chief Judge) Alex Kozinski, of the Ninth Circuit, had this to say about financial disclosure:

I file a financial disclosure report every year, telling the world what assets I own, just so the parties can confirm I have not — God forbid — sat in a case involving a corporation where I own stock. I find this requirement a nuisance — I have to pay someone several hundred dollars to fill out the report — and a bit dangerous and intrusive, because it discloses various things about me and my family, and our assets, that I would prefer to keep private. But I do file the report because it’s required.

Yet I cannot imagine that I could possibly be tempted to change my vote in a case because I own stock in one of the parties. I don’t claim a special virtue in this — virtue means resisting temptation. What I’m saying is, I wouldn’t be tempted. If money were important to me, I’d be practicing law and, in a week or a month — maybe in an hour — I would make much more than my 100 shares of AT&T could possibly make based on my vote in a case. The idea that I would give up my honest judgment in a case for a few dollars is beyond silly — it’s ludicrous and insulting.

Amen, Judge Kozinski; very well stated, Your Honor.

As a blogger, I appreciate the financial disclosure requirement because it gives me (and the rest of the public) access to juicy dish about the wealth of federal judges (and judicial nominees). But the notion that we need these disclosures in order to police conflicts of interest seems like a bit of a stretch.

In most of these cases, a justice owns a small stake in a gigantic corporation — maybe shares worth a few thousand dollars, of a company with a multibillion-dollar market capitalization — and the stock’s price is barely affected by the SCOTUS decision. So the justice’s financial interest is so negligible that he or she might not even be aware of it (as Justice Alito was unaware of his interest in this case).

I could imagine a situation where a judge or justice has a larger stake in a more closely-held company, and the company could be significantly affected by the judicial decision. But such cases would be rare. Perhaps this is an argument in favor of some sort of “materiality” requirement, as opposed to the bright-line rule requiring recusal, no matter how small the stake or how minor the effect on the stock price.

On the other hand, the virtue of bright-line rules is that they’re easy to administer. Your thoughts on how to address this issue are welcome, in the comments.

Judging Judges’ Ethics [Judge Alex Kozinski]
Alito Owned Stock, Voted in Case Involving Disney’s ABC [Associated Press via Law.com]
‘It’s a Mistake,’ Says Alito, After Discovering Disney-Stock Oversight [WSJ Law Blog]
Justice Alito Says He Should Have Recused Himself in 5-4 ‘Fleeting Expletives’ Decision
[ABA Journal]
Justice Breyer breaks collarbone in bike accident [How Appealing via ABA Journal]
Sotomayor Got $1.175 Million for Memoir, Forms Reveal [New York Times]


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