486 U. S. 847
June 17, 1988
Judge Collins of Louisiana was determining who owned a hospital. While this case was going on, Loyola was looking to sell land to the hospital, though only if Liljeberg won the suit (as he eventually did). Judge Collins was on Loyola’s board of trustees, but he was unaware of all this at the time. When these weird connections came out afterward, the losing party moved to vacate the ruling of Judge Collins, on the ground that he violated a federal law about judges recusing themselves when they have a stake in the outcome. Collins argued that he didn’t know about the conflict of interest until afterward, so there was no harm.
Unfortunately, the Supreme Court disagreed in a terrible 5-4 ruling. Stevens said that the federal law on disqualification was meant to protect citizens from even the appearance of impropriety on the part of judges. Thus, even if a judge did not know about a conflict of interest, they had a duty to recuse if they should have known. Based on his attendance at several trustee meetings, Collins clearly should have known, and at a minimum he should have personally tried to vacate his ruling the day it all came to his attention. Because the obliviousness of Judge Collins was so staggering, Stevens agreed with the lower court that the proper remedy was vacating the ruling entirely – something federal law only allowed in extreme cases.
Rehnquist, joined by White and Scalia, dissented from this nonsense. When a judge really wasn’t aware of any conflict of interest until afterward, there was no harm done. Furthermore, “[t]o hold that disqualification is required by reason of facts which the judge does not know, even though he should have known of them, is to posit a conundrum which is not decipherable by ordinary mortals.” Rehnquist was equally unimpressed by the monumental overreaction of ruling that this mistake was extreme enough to warrant vacating the ruling nearly a year after the fact. O’Connor said she agreed of most of Rehnquist’s points, but left open the possibility of a new trial if the lower courts really thought it was necessary.
I hate judges recusing themselves over stupid minutia like service on a board of trustees, or a tiny amount of stock owned in a broad portfolio. It can often lead to tie votes that waste everyone’s time and money – you’re pleasing an unreasonable jerk who will say that a Justice was just voting to protect their interest in three shares of stock, but at way too high a cost. At one point, Stevens sententiously intones that “people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” True enough, but we don’t have those doubts over specious crap like stock portfolios or trustee boards.
Let’s be blunt about it: 99% of the time, our “suspicions and doubts” are based on the judge’s political leanings and biases. If Stevens was being honest, he’d admit that the greatest appearances of partiality come when the judge apparently votes in line with his political preferences. How ironic that political leanings are the reason a judge is least likely to recuse himself to avoid the appearance of partiality! At any rate, when Justices like Brennan and Marshall are (completely by coincidence, I’m sure) voting for criminal defendants, unions, and racial minorities in nearly every case, it’s hard for me to take complaints about being on a board of trustees seriously.
This is the very first case of Kennedy being the swing vote and betraying the other conservatives. Sadly, it would not be the last case. In fact, this ruling contains some creepy prefiguring of Planned Parenthood v. Casey. The majority worries about the judge’s appearance of impropriety more than the presence of actual impropriety. Four years later, a majority composed of largely the same Justices ruled that Roe must be reaffirmed, because whether or not it was incorrectly decided, public perception of the judiciary would be undermined by overruling it. In other words, appearance matters more than the actual facts and legal substance – truly a horrifying perversion of justice and legal priorities!