Conflicts let apartheid case stand

Jeremy Hobson May 12, 2008

Conflicts let apartheid case stand

Jeremy Hobson May 12, 2008


KAI RYSSDAL: The U.S. Supreme Court deferred to Wall Street today. Four of nine justices recused themselves from a case because of financial conflicts of interest. At issue was whether victims of apartheid can sue American companies that had dealings with South Africa’s former apartheid government. We might never know what the Supreme Court thinks, because apparently the justices own stock in some of those companies. The law says you need at least six justices to hear a case, so the lower court ruling’s going to stand. Jeremy Hobson has more on when judges can’t decide.

JEREMY HOBSON: What happened today — four justices having to recuse themselves — is not typical. On the other hand, one justice recusing? That’s already happened a couple times this term.

JAMES BECK: So after spending all that money and all that time, we’re no better off then we were if they hadn’t take the case at all.

That’s attorney James Beck, who worked on a drug-company liability case that made it to the Supreme Court earlier this term. One justice had to recuse and the case ended in a 4-to-4 tie, affirming the lower court’s decision.

Stephen Gillers, an expert on judicial ethics at NYU, says conflicts of interest are more common these days at the high court.

STEPHEN GILLERS: It’s not just an ongoing problem, it’s an escalating problem.

Gillers says that’s because justices are entering the court richer and with more financial holdings. And the court has been taking more business cases in recent years. So there’s more of a chance there will be a conflict.

Gillers says there are a few obvious solutions.

GILLERS: One is to say, Look, if you want to be a justice, your investments have to be in mutual funds.

Or blind trusts, for that matter . . .

Two, he says, is to relax the ethical standards for recusal, though he’s not in favor of that option.

GILLERS: And a third possibility, which is present in many state courts, is to allow the court to bring up a lower-court judge in the event of a tie or the lack of a quorum.

One other option that’s been used before: A justice can simply sell the assets that present the conflict.

Of course, that wouldn’t have worked for Justice Anthony Kennedy. He recused himself from the apartheid case not because of stock. His son works for one of the companies involved.

In Washington, I’m Jeremy Hobson for Marketplace.

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