Legal Geek No. 120: Conflicts and Bias at the Supreme Court

Welcome back to Legal Geek. This week, we update you on an augmented reality game lawsuit we covered earlier, and then turn to rising issues of conflicts of interest at the Supreme Court and the need for better controls to avoid personal bias at the highest court of the land.

https://archive.org/details/LegalGeekEp120

A few months ago, Legal Geek covered the latest in a lawsuit pitting Milwaukee County in Wisconsin against augmented game makers like those who make Pokémon Go.  As you'll recall, Milwaukee County enacted an ordinance in February requiring augmented reality game developers to go through a rigorous approval process with several very expensive requirement to operate in Milwaukee's parks.  Candy Labs challenged this ordinance in federal court and won an injunction this summer against enforcement of the ordinance as potentially not being constitutional.

This case was slated to go to trial in a couple months, but a settlement agreement was reached this week.  Under the settlement, Milwaukee will not enforce the ordinance and will pay attorney's fees to Candy Labs for this lawsuit.  So rejoice Pokémon Go and other augmented reality game fans, as this legal victory should deter other localities from unfairly limiting use of public spaces to gamers like this.

Now to our main topic this week, conflicts of interest at the Supreme Court. 

To describe conflicts of interest simply, judges are to be conflicted out of a case when they have personal involvement, such as by owning company stock, or prior involvement as an advocate on one side of a case they would be adjudicating.  We don't want unfair bias in the court system, so when conflicts come up the judge is supposed to recuse themselves, AKA withdraw from the decision making.  All lawyers also do conflict checks regularly to avoid representing two companies or persons that would be opponents to one another in court, so it's not unique to judges, nor is it a new concept to these seasoned attorneys who become Supreme Court justices.

Earlier this month, Justice Kagan recused herself from an immigration case that's been in hearings and re-hearings at the court for over 18 months.  Despite participating in a first decision when the court had 8 justices and was deadlocked, and then participating in the oral arguments of the re-hearing this October, at no point in this process did Kagan or her staff identify the disqualifying conflict of interest she had from her prior job as a solicitor general.  If Kagan had recused herself in a timely fashion, this case would be long wrapped up, and there would be no risk of bias based on her significant involvement in the oral argument and part of the decision-making process.  But that did not happen here.

More troubling, this is the third straight year where this has happened on a Supreme Court case, with a late recusal by a Justice after significant participation in the case.  The other two cases involved stock ownership in a company with stakes on the line in a Supreme Court case.  How does this problem keep occurring, and why?

There are some formal standards and a Code of Conduct federal courts are supposed to follow, including automated software screening checks, but these were made by a conference of judges at all levels of the judiciary.  The Supreme Court believes that by constitutional mandate, they are one court and not subject to policies or rules being forced upon them by lower courts.  As a result, each justice handles these potential conflicts in their own independent way.  As we can see, that's not working perfectly.

It is vital for the fairness and transparency of the judiciary that the highest court in the land be free from unfair biases.  To accomplish that, the Supreme Court should institute at least some standard procedures to more quickly and accurately identify these issues for consideration before an oral argument is conducted.

The Bottom Line is, the public has faith in the courts because they are designed to be fair and impartial, but the Supreme Court has a long way to go to catch up to the rest of federal courts in avoiding conflicts and late recusals from cases.  In a country so divided in partisanship in the other branches of government, we have to hope the courts lead by example and fix problems like this.

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