This isn’t the first time Justices Samuel A. Alito Jr. and Clarence Thomas have faced pressure to recuse themselves from cases over the activities of their relatives, their relationships with involved parties or their financial interests.
Newly released and previously unreported court documents that belonged to Justice John Paul Stevens, who led the marble palace’s liberal wing, show just how aware the justices were of charges that the appearance of impropriety could shake the public’s faith in the institution. They also show just how quick they were to push back against these concerns.
The Library of Congress opened the papers to the public on May 2.
The issues the justices wrestled with back then echo the controversies engulfing the court today.
Although the court often puts up a united front in public, the documents provide a rare glimpse into its inner workings and show that at least one justice — Stevens — found Chief Justice William H. Rehnquist’s rationale for not recusing himself from a major case to be insufficient.
Let’s go to the archives …
In 1998, the Justice Department and 20 state attorneys general filed a major antitrust lawsuit against Microsoft, accusing the software giant of wielding a monopoly over the personal computer business.
When the case reached the Supreme Court, Rehnquist faced a conundrum: His son, James C. Rehnquist, was a partner at a law firm and was working on “private antitrust cases” for Microsoft, as Chief Justice Rehnquist later publicly wrote.
The question was whether Rehnquist should recuse himself — an important decision because justices who recuse themselves from cases cannot be replaced, raising the risk of a 4-4 deadlock.
Seven Supreme Court justices — including Rehnquist — had previously signed a 1993 statement outlining their recusal policy for cases in which a law firm representing one of the parties before the court also employed one of the justices’ relatives. The justices wrote that they would not recuse themselves from these types of cases unless the relative was lead counsel or the relative’s compensation would be “substantially” affected by the outcome.
Rehnquist ultimately decided that he would not disqualify himself from the case and explained his decision in a draft statement he sent to the justices.
Rehnquist suggested to the other justices that he was acutely aware of the weight of impartiality on the public consciousness — and that the court wasn’t operating in a vacuum.
“All of the usual kibitzers will be watching this case like a hawk, and I think full disclosure in advance may avoid some of the inevitable criticism,” the chief justice wrote.
Justices Ruth Bader Ginsburg and Sandra Day O’Connor responded, praising the chief’s decision. (Ginsburg died in 2020. O’Connor, now 93, withdrew from public life in 2018.)
Stevens, on the other hand, had concerns with Rehnquist’s reasoning.
The justice, a former antitrust lawyer, thought “that if the Supreme Court did something substantive in this case, it could and very likely would have an impact on a private antitrust litigation that [Rehnquist’s] son was involved in,” a former Stevens clerk told us, speaking on the condition of anonymity to discuss internal court matters.
Stevens underlined an argument by Rehnquist that said “it would be unreasonable and speculative” to conclude that the outcome of the Microsoft case “would have an impact” on his son’s interests. Stevens wrote“WRONG”in the margin next to the underlined text (many of Stevens’s notes throughout his papers are in capital letters) and explained that the “MATTERS ARE INTERTWINED.”
Rehnquist also wrote that the outcome of the case before the court “could potentially” affect Microsoft’s exposure to antitrust liability in other litigation. Stevens circled “could potentially” and wrote “WILL DEFINITELY AFFECT AND MAY CONTROL” in the margin.
Stevens also believed that the appearance of a conflict of interest between the chief justice and his son should have been enough for Rehnquist to recuse himself from the Microsoft case, the clerk said. Stevens wrote, “APPEARANCE – !!!” on the front page of the draft.
“This is a no-brainer for him,” the clerk explained, noting that Stevens “had a very low bar for recusal.”
The Supreme Court ultimately declined to hear the case and sent it back to the appeals court. The two parties later settled.
In 2004, weeks after the Supreme Court agreed to hear oral arguments about whether Vice President Dick Cheney should hand over documents related to his energy policy task force, Justice Antonin Scalia went duck hunting in Louisiana.
Scalia was joined on the trip by about a dozen other hunters, including Cheney, who traveled on a Gulfstream jet with Scalia, and a businessman who hosted the hunt.
Legal experts at the time said the trip raised the appearance of impropriety and cast doubt on whether Scalia could be impartial. On Feb. 23, 2004, the Sierra Club, which had sued for access to the energy task force’s records, asked Scalia to recuse himself from the case.
Scalia refused, wrote a 25-page “rough draft” of a statement explaining his rationale — which was longer and much more critical than the final version — and sent it to Stevens for his feedback.
The final version of the statement is slightly different from the draft sent to Stevens:
A clause about recusals was removed: In the original draft, Scalia wrote that he “will have no hesitation” about recusing himself from cases in the future.
The word “false” was replaced with “misleading”: Scalia wrote in the draft that descriptions in news outlets (including The Washington Post) of Wallace Carline, the host of the Louisiana hunting trip, as an executive in the oil industry were “false.” The final version says they were “misleading.”
The draft referenced frequent invitations to fly with administration officials: Officials in the executive branch “frequently” invite members of Congress and the Supreme Court to join them “on government planes,” Scalia wrote in the draft. The final version said “Members of Congress and others are frequently invited to accompany Executive Branch officials on government planes, where space is available.”
It is unclear from the documents why Scalia made these changes or whether Stevens made any suggestions.
Nearly two decades later, Alito would use arguments similar to those employed by Rehnquist and Scalia to defend his decision not to recuse himself from cases in which billionaire Paul Singer stood to benefit. He was also similarly defensive about the concerns raised by what Rehnquist referred to as the “usual kibitzers.”
This time, the kibitzing isn’t likely to stop anytime soon.
Rehnquist was a real piece of work too.
This is all coming out and it’s clear that they have been totally politicized for some time and a few of them have a serious problem with corruption. There is no reason to hold them in some high esteem as a sacred institution that cannot be reformed. It’s time for term-limits and we might as well add a couple of new justices while we’re at it.
