Chief Justice Roberts recused himself from a patent case yesterday, long after one might expect. The belated withdrawal came almost a month after the Court heard oral arguments in the case, Life Technologies v. Promega, following the tardy discovery that Roberts owned stock in Life Technologies' parent company.
This isn't the first failed conflict check in recent Supreme Court history. It's not even the first involving the chief justice.
Roberts' Unspotted Stocks
Roberts owns 1,212 shares of Thermo Fisher Scientific Inc., the parent company of Life Technologies, whose patent dispute case involving genetic testing technology was argued on December 6th. Roberts' shares are worth were worth slightly over $176,000 on Thursday.
Federal law mandates that justices recuse themselves when they or a close family member has a financial stake in a case. Each justice establishes his or her own procedures for identifying and responding to potential conflicts, however.
In a letter to the attorneys in the case, Supreme Court Clerk Scott Harris stated that "The ordinary conflict check conducted in the chief justice's chambers inadvertently failed to find this potential conflict," according to Reuters. The letter apparently didn't elaborate on why the conflict check failed or how the potential conflict was later discovered.
Not the First Missed Conflict, Probably Not the Last
We will probably never know why Roberts' chambers didn't spot this potential conflict. The Supreme Court has no single standard for identifying conflicts of interest and decisions about recusal are left to the individual justices.
However, the relationship between Life Technologies and Thermo Fisher Scientific, and the ensuing potential conflict of interest, shouldn't have been too hard to catch. Life Technologies' petition for review, corporate disclosure statement, and merits brief all disclosed that the company was "an indirect wholly-owned subsidiary of Thermo Fisher Scientific," SCOTUSblog's Amy Howe notes.
The late recusal "contributes to what has become a pattern among the three justices who have broad stock holdings," according to Bloomberg. The chief justice and Justices Breyer and Alito have all heard arguments involving companies that either they or their close family have had an interest in.
In 2009, Justice Alito refused to recuse himself from a case involving ABC, despite the fact that his children owned stock in Disney, ABC's parent company.
In 2015, for example, Justice Breyer heard arguments in a case involving a subsidiary of a company in which his wife owned stock. When Bloomberg pointed out the potential conflict, Joanne Breyer sold her stock and Justice Breyer stayed on the case.
That same year, the chief justice participated in a cert decision over a toxic waste case involving Texas Instruments, another company he owned six-figures worth of stock in. That conflict appears to have gone unspotted at the time as well.