A self-styled “non-partisan grassroots organization” called Fix the Court thinks it’s a big problem that justices can decide cases in which they own stock in companies that aren’t parties but that take part as amici. In a paper titled “Blind Trust: How Supreme Court Justices Are Ruling in Favor of the Publicly Traded Companies Whose Securities They Own” and a recent update, Fix the Court purports to document the problem and proposes solutions.
Specifically, Fix the Court contends that the three justices who “own a significant amount of common stock in individual companies”—Chief Justice Roberts, Justice Breyer, and Justice Alito—have since 2009 collectively taken part 37 times in some two dozen cases in which a company whose stock they own has filed an amicus brief and that they have voted the company’s way 27 times. (I’m relying on the statistics in the update.)
Unfortunately, a quick, and far from exhaustive, review indicates that Fix the Court’s data is highly unreliable (which, no surprise, hasn’t kept it from being credulously parroted, including by Lincoln Caplan in his New Yorker fiasco on Supreme Court ethics). Consider:
1. Among the cases that Fix the Court lists are United States v. Windsor (challenge to the Defense of Marriage Act), Hollingsworth v. Perry (challenge to California’s Proposition 8 on marriage), and Fisher v. University of Texas (challenge to racial preferences).
Does anyone imagine that any of the corporate amici plausibly had any discernible financial interest in the positions they advanced? Why not exclude these three cases from the database? They actually account for a remarkable 32% of the data—nine votes out of 29 total—in Fix the Court’s initial paper. (They account for 60% of Alito’s votes in that paper.)
How many other of the cases, upon examination, might also clearly deserve to be excluded? In other words, in which cases is it even plausible to contend that the outcome might have substantially affected the value of a justice’s ownership in the stock of an amicus?
2. The update claims that EMC Corp., in which Breyer owns stock, and Hewlett-Packard, in which Roberts owns stock, “filed briefs in favor of Teva Pharmaceuticals” (emphasis added). But the EMC and Hewlett-Packard amicus briefs were instead filed in support of Teva’s adversary. So Fix the Court has things backwards when it contends that Roberts and Breyer, by voting in favor of Teva, voted for the positions of the amici in which they owned stock. They in fact voted against those positions.
If Fix the Court could make such a blunder, how carefully has it scrutinized its data?
3. The update notes that Breyer owns stock in two companies that appeared as amici on opposite sides in Nautilus v. Biosig Instruments. Rather than exclude the case, Fix the Court counts it as one occasion on which Breyer has ruled in favor of the position of an amicus in which he owns stock and as one occasion on which he has voted against such a position. (In fairness to Fix the Court, I will note that including the case has the effect of marginally lowering the overall percentage of cases in which the three justices have voted for the positions of amici in which they own stock.)
(I’m doubtful, I’ll acknowledge, that any meaningful insights could be garnered from a reliable set of data. Among the problems that afflict the Supreme Court, I’d also rank very, very low the risk that any of the justices might be influenced in their decisions by their stock holdings.)