Two Surprise Supreme Court Orders Show Why Recusals Matter

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Chief Justice John Roberts Jr. at the investiture of Neil Gorsuch in June 15, 2017. Credit: Diego M. Radzinschi / NLJ [/caption] The U.S. Supreme Court case Washington v. United States may not have made big headlines. But it was an important and long-running dispute over Indian fishing rights, federalism and environmental issues that generated more than a dozen amicus curiae briefs. On Monday, the court disposed of the case with two sentences: “The judgment is affirmed by an equally divided court. Justice Kennedy took no part in the decision of this case.” Because Justice Anthony Kennedy recused himself in the case, a 4-4 tie-vote was all the court could muster—and when the justices are tied, the lower court ruling at issue stands. That amounts to a win for the Suquamish and other Indian tribes, with their salmon fishing rights protected. Tie results can feel like a letdown for litigants, considering the resources firms invest in Supreme Court cases. Still, from a client perspective, a split ruling can be just as good as a full opinion—or better. Why did Kennedy recuse? Justices don’t usually say why, but in a March 23 letter to the parties, Supreme Court Clerk Scott Harris wrote that Kennedy “learned recently that, while serving as a judge on the Ninth Circuit Court of Appeals, he participated in an earlier phase of this case. The ordinary conflict check conducted in Justice Kennedy’s chambers inadvertently failed to find this conflict.” That participation, it turned out, was 33 years ago. The surprise one-page outcome of the case was not the only reminder on Monday of the importance of recusals in the Supreme Court’s work. In lower courts, when a judge recuses, another colleague can step in. But at the Supreme Court, the justices are not fungible. Chief Justice John Roberts Jr. on Monday recused in the court’s denial of certiorari in Wyckoff v. Commissioner of Baseball—one of a number of perennial efforts to challenge the questionable exemption of major league baseball from federal antitrust scrutiny that has been on the books since 1922. Roberts may have stepped aside because he owns between $100,001 and $250,000 in SiriusXM Radio stock, according to his most recent financial disclosure form. Liberty Media Corp. has 71 percent ownership in SiriusXM, and 100 percent ownership of the Atlanta Braves, one of the baseball teams being sued in the Wyckoff case, according to Gabe Roth of the transparency advocate Fix the Court. Coincidentally, another petition aimed at Major League Baseball’s antitrust exemption was also denied review on Monday: Right Field Rooftops v. Chicago Cubs Baseball. Roberts did not remove himself from that case, presumably because Chicago was the only team being sued, and it did not pose a conflict for Roberts or any other justice. The somewhat cynical takeaway for future litigants who want to upend baseball’s antitrust exemption again is this: If you think you want Roberts’ vote, don’t sue the Atlanta Braves. Read more:The Mystery Behind the Supreme Court’s Dismissal of a Pending CaseShould Justices Conduct Online Research? | Why Recusals MatterSCOTUS Justices Reveal Book Royalties, Teaching Fees, Stock SalesThe Justices Used to Explain Recusals. What Changed?