Supreme Court Justice Elena Kagan recused herself Friday from a divisive immigration case that was argued in October, after her chambers identified a conflict of interest they inadvertently missed during the pre-argument conflicts audit.
The case, Jennings v. Rodriguez, asks whether illegal aliens have the right to a bond hearing when held by federal authorities for longer than six months. It was originally argued Nov. 30, 2016, when the Court had just eight justices. The case appears to have resulted in an even split, as it was scheduled for reargument after Justice Neil Gorsuch’s confirmation returned the court to its full complement of nine.
Now it appears the case may again result in a four-four split. Clerk of the Court Scott Harris released a letter Friday informing the parties that Kagan discovered she had authorized a filing at an earlier stage of the case while serving as solicitor general in the Obama administration. As a general rule, the justices recuse themselves from cases they were involved with at an earlier stage of their career. Harris explained that the filing eluded notice during the conflicts check conducted by her chambers.
The development is rather embarrassing for the Court, as the justices have reached an advanced stage of adjudication. Jennings was reargued Oct. 3, and the justices discussed the case and assigned opinions Oct. 6.
Jennings is the third time in as many terms that a justice participated in a case despite a clear conflict of interest. Chief Justice John Roberts recused himself from a patent case during the 2016 term nearly a month after the argument, once he discovered he owned stock in the parent company of one of the parties, Life Technologies.
One year before that, Justice Stephen Breyer participated in a Federal Power Act case despite the fact his wife owned stock in a company with a major stake in the outcome of the litigation. Breyer sold the stock immediately following inquiries from Bloomberg News, though he did not recuse himself from the case. Both instances were the result of inadvertent errors.
The Court has no institutionalized conflicts procedure, relying instead on each of the nine offices to conduct their own assessment.
“The conflict checking process is an internal one carried out by the individual chambers,” the Supreme Court Public Information Office told The Daily Caller News Foundation. “The Clerk’s Office and Legal Office are available to assist chambers as needed, and counsel identify all parties and include corporate disclosure statements in the briefs submitted to the Court.”
Fix the Court, a judicial watchdog that advocates for increased transparency at the Supreme Court, said these repeated failures demonstrate the necessity of a formal, streamlined conflicts audit at the high court.
“We as citizens trust that our nation’s top legal officials work hard to avoid the appearance of impropriety,” Fix the Court executive director Gabe Roth said in a statement. “But today’s episode marks the third term in a row in which a justice heard an argument and then belatedly noticed a conflict. The justices can and should do better, and they can start by adopting a uniform software based conflict check system currently used by all lower federal judges.”
The Judicial Conference of the United States requires all federal courts to use the sort of conflict detection software Roth describes. The Supreme Court, however, is not bound by the ethics rules set by the Judicial Conference.
“Every judge is required to develop a list of personal and financial interests that would require recusal, which courts use with automated conflict-checking software to identify court cases in which a judge may have a disqualifying conflict of interest,” the Conference’s website reads.
Breyer himself endorsed the use of conflict-checking software in 2006. He led a Judicial Conference committee that generated a report suggesting federal courts use automated systems for conflict detection.
The justices tend to be coy as to their reasons for recusing, lest they be seen as pressuring colleagues to step aside under similar circumstances. Explanations are rarely provided by the court, leaving reporters and court-watchers to speculate as to motive.
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