Supreme Court’s manual conflict check can be problematic

The Supreme Court manually checks for conflicts when determining whether the justices should recuse themselves from hearing petitions, as opposed to using conflict checking software, according to the National Law Journal. (sub. req.) This issue recently came to prominence when Justice Breyer failed to recuse himself from oral arguments in a case where his wife owns stock in one of the companies with a connection to the matter.

According to Bloomberg Politics, Breyer's office did a standard check for Federal Energy Regulatory Commission v. Electric Power Supply Association, but did not discover the conflict, which arose because Breyer's wife owned stock in Johnson Controls, whose subsidiary EnergyConnect is a party to the case.  Bloomberg also reports that she sold the stock the day after arguments took place when a reporter brought the connection to light. Justice Alito also has a stock-related connection to the case, but this was discovered through a conflict-check and he recused himself.

The National Law Journal reports that lower federal courts use automated conflict checking software, as required by policies set by the Judicial Conference. This involves judges creating a list of personal and financial interests that could create a conflict, which are used with the software to determine if a judge must be disqualified from hearing a case. At the Supreme Court, checks are done manually by the justices or their staff.

Briefs submitted to the court are required to provide the names of all parties and corporate disclosure statements for corporations, which must identify "the parent corporations" and "any publicly held company that owns 10% or more of the corporation’s stock," according to The National Law Journal and Supreme Court Rule 29.6. These are compared with lists of potential conflicts provided by the justices.

This is not the first time that stocks have raised conflict issues in the court. According to Bloomberg, Justices Breyer, Roberts and Alito have all either disqualified themselves or sold stocks before to avoid a conflict. Bloomberg reports that according to judicial conduct rules, justices are permitted to continue participating in a case once they have "divested their financial interest."

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