Roberts recuses from December patent case

The issue of the conflicts created by the justices stock ownership came to the forefront again today, with the announcement that Chief Justice John Roberts would no longer participate in a patent case argued on December 6. In a letter to the attorneys in Life Technologies Corp. v. Promega Corp., court clerk Scott Harris wrote that Roberts had learned that the petitioner in the case, Life Technologies, was owned by Thermo Fisher Scientific a company in which Roberts holds 1212 shares.

Federal law requires the justices to recuse themselves if they or a close family member has a financial interest in a case; the justices follow their own procedures to detect possible conflicts. Todays letter indicated that the ordinary conflict check conducted in the Chief Justices chambers inadvertently failed to find this potential conflict, without providing any additional details. However, the petition for review that Life Technologies filed in June 2015 did note, in the corporate disclosure statement required by the courts rules, that Life Technologies is an indirect wholly-owned subsidiary of Thermo Fisher Scientific. The companys brief on the merits, filed in September 2016, also disclosed that relationship.

Todays disclosure was not the first time in recent memory that a justice has discovered a conflict of interest arising from stock ownership after participating in an oral argument. Last year, Justice Stephen Breyer sat on the court when it heard oral arguments in a case involving the financial incentives offered to electricity customers to use less power when demand is high. Only after the argument, in response to questions from Bloomberg News, did Breyer disclose that his wife owned stock in a Wisconsin company whose subsidiary was part of the case; Joanna Breyer then sold her shares in the company, allowing Breyer to continue to participate in the case.

One watchdog group, Fix the Court, has suggested that the justices should be required to place their stock in individual companies in blind trusts, which would allow them to avoid both potential conflicts of interest and the possibility that a recusal prompted by stock ownership could leave the court deadlocked in a 4-4 tie. Perhaps ironically, with the court operating with only eight justices since the death of Justice Antonin Scalia last year, todays recusal announcement eliminates the possibility of a tie in Life Technologies.