Roberts Belatedly Sees Conflict, Withdraws in Top Court Caseby
Letter says office missed link between case, Thermo Fisher
Late recusal adds to pattern among stockholding justices
Chief Justice John Roberts withdrew from a U.S. Supreme Court patent case argued last month after belatedly discovering that his stock holdings had created a possible conflict of interest.
Roberts owns 1,212 shares of Thermo Fisher Scientific Inc., whose Life Technologies unit is embroiled in a patent fight with Promega Corp. over genetic testing kits, a court official said in a letter released Wednesday. The letter said Roberts had discovered that Thermo Fisher owns the unit.
"The ordinary conflict check conducted in the chief justice’s chambers inadvertently failed to find this potential conflict," Supreme Court Clerk Scott Harris wrote. Roberts’s shares were worth almost $176,000 at Wednesday’s closing price.
During arguments on the case, Roberts asked about half a dozen questions.
The recusal contributes to what has become a pattern among the three justices who have broad stock holdings. Roberts, Justice Stephen Breyer and Justice Samuel Alito all have heard arguments while they or a close family member had a stake in a company that was involved in the case.
Alito cast a vote in a 2009 case involving Walt Disney Co.’s ABC unit even though his children held Disney stock. Alito was part of a 5-4 majority that revived a Federal Communications Commission effort to crack down on vulgarity on television.
In a power-industry case in 2015, the court said Breyer initially didn’t realize that his family had a stake in a litigant’s parent company. Breyer dropped out of the case after a reporter inquired. Later that year, Roberts inadvertently took part a decision to reject a Texas Instruments Inc. appeal.
Under federal law, the justices can’t participate in a case when they or close family members own stock in a company that is a party. The court’s rules require litigants to list all the parties to the case, and businesses must disclose any publicly traded parent company -- as Life Technologies did when it filed its appeal in June.
Each of the nine justices’ has his or her own system for checking for conflicts. Critics say the approach isn’t adequate.
"These episodes of missed conflicts underscore our position that none of the justices should hold individual stocks," Gabe Roth, executive director of the advocacy group Fix the Court, said in an e-mailed statement. Roberts, Breyer and Alito "should focus their investing solely on the types of financial instruments -- like retirement funds and bonds -- that will not further erode the public’s confidence in their impartiality."