Recusal Recuse
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Justice Brett Kavanaugh found himself in an unusual position at the Supreme Court on Monday, standing apart from his conservative colleagues after Justice Samuel Alito unexpectedly recused himself from a major oil-company case.
The court refused to hear the case of Sunoco Inc. v. Cline, and so left intact a class-action judgment of roughly $100 million against the company. One notable point in the short order was that Kavanaugh was the only member of the judiciary who had made a public statement expressing his desire for the court to take the case.
At the same time, Alito did not take part in the decision. The court gave no reason for his recusal, but Newsweek reported that he has a financial interest he has in Sunoco's competitors
The disagreement stems from the allegations that Sunoco did not pay the required interest when payments to the owners of oil wells in Oklahoma were delayed, and the case later developed into a class action suit involving tens of thousands of holders of royalties and interest.
Sunoco contended that the class was far too wide and that a great many of the individuals included in the ruling had never been identified or proven to have suffered an injury that would entitle them to bring a lawsuit.
The federal appeals court dismissed those arguments and maintained the judgment. The Supreme Court's decision not to consider Sunoco's appeal meant that the ruling could stay in place.
By supporting the company's plea for another hearing, Kavanaugh had taken a position that was clearly at odds with that of the other members of the court. On the same day Kavanaugh showed sympathy for another big energy company in a separate case involving Suncor Energy and Exxon Mobil, the development took place.
The disagreement centers on lawsuits initiated by local governments in Colorado against oil companies for damages caused by climate change, and the companies contend that interstate pollution is essentially a matter for the federal government and cannot be dealt with by means of individual state-law claims.
While giving his oral arguments, Kavanaugh referred to a number of earlier Supreme Court rulings which he stated strongly supported the companies' position.
“As I read them together, [these precedents] make crystal clear that interstate air and water pollution are matters for federal law unless Congress specifically preserves state law,” Kavanaugh said. “That is through and through those four cases.”
The two cases involve different companies and legal issues, even though they share similar names: Sunoco and Suncor. Yet on Monday there was a rare opportunity to see Kavanaugh's view on the court, where the six-member conservative majority usually acts in unison.
In the case of the Sunoco dispute, Kavanaugh was prepared to give the company another hearing while none of his colleagues publicly supported him.
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PETITION TO THE SUPREME COURT OF THE UNITED STATES AND TO THE U.S. CONGRESS
(By signing this form, you will be added to the Supreme Court petition and an email will be sent to your U.S. Representatives and Senators.)
Subject: Justice Clarence Thomas must recuse himself from Monsanto Co. v. Durnell, No. 24-1068, due to conflicts of interest undermining judicial impartiality.
To the Honorable Justices of the Supreme Court of the United States and the U.S. Congress:
We, the undersigned citizens, believe that Justice Clarence Thomas should recuse himself from participating in Monsanto Co. v. Durnell — a case docketed for the current term involving alleged harms from Monsanto’s Roundup herbicide — because of his previous employment with the company, his documented history of support for the company as a Senate aide, and longstanding ethical concerns related to his position on previous cases involving Monsanto — all of which give rise to reasonable questions about his impartiality.
Background
Monsanto Co. v. Durnell is a petition for writ of certiorari in which Monsanto seeks review of a state court judgment against it on claims that exposure to glyphosate — the active ingredient in Roundup — caused serious illness, and that Monsanto failed to warn consumers about the risks.
Grounds for Recusal
Under 28 U.S.C. § 455, federal judges and justices should disqualify themselves “in any proceeding in which their impartiality might reasonably be questioned,” including when they have a former professional relationship with a party.
1. Former Employment at Monsanto
- Early in his career, Clarence Thomas worked as an attorney for Monsanto Corporation in the late 1970s. Subsequently, as a Senate aide, it is documented that he relentlessly lobbied his boss on behalf of corporate interests, including Monsanto’s.
- Although more than four decades have passed, this prior professional relationship creates at least the appearance of bias when Thomas adjudicates cases involving his former employer — particularly given the seriousness and potential economic impact of disputes like Durnell.
- In past Supreme Court cases involving Monsanto, including Monsanto Co. v. Geertson Seed Farms (2010), Thomas did not recuse despite this connection, while other justices, like Justice Breyer, voluntarily stepped aside when they had distinct personal ties to the case.
2. Judicial Ethics and Public Confidence
- Supreme Court justices are not bound by the Judicial Code of Conduct that applies to lower federal judges, and are rarely required to explain recusal decisions. Still, experts and lawmakers have repeatedly noted that the Court’s legitimacy depends on avoiding even the appearance of partiality.
- Public trust in the judiciary is eroding, in part due to perceptions that justices participate in cases where conflicts should warrant recusal. Ensuring that Justice Thomas steps aside from Monsanto Co. v. Durnell would affirm the principle that justice must not only be done but be seen to be done.
3. Precedent and Standards
- In federal practice, judges routinely recuse themselves when a reasonable observer could question their impartiality, including when they previously represented a party in a matter substantially related to the case before the judge.
- Although recusal by a Supreme Court justice is discretionary, it is grounded in the same normative principles that apply across the judiciary: fairness, impartiality, and confidence in the rule of law....
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