An untimely recusal from Justice Elena Kagan has placed the U.S. Supreme Court’s ethics rules—or the lack of them—under fire again.

Kagan’s chambers recently discovered a conflict in an immigration case, Jennings v. Rodriguez, that’s been pending for more than a year and a half, the Supreme Court’s clerk’s office said in a Nov. 10 letter.

The case was reargued in October after the shorthanded court was presumably split 4-4 following the first argument. Kagan’s recusal suggests that the reargument wasn’t necessary, as a seven-member court could have resolved the case last term.

“The ordinary conflict check conducted in Justice Kagan’s Chambers inadvertently failed to find” the conflict, the letter said. As a result, Kagan participated in oral arguments despite the disqualifying conflict.

The “episode marks the third term in a row in which a justice heard an argument and then belatedly noticed a conflict,” Gabe Roth, of Fix the Court, Washington, said in a Nov. 10 press release sent to Bloomberg Law. Fix the Court is a non-profit organization urging more accountability and transparency at the Supreme Court.

It would be beneficial to both the advocates and the public if the justices followed a clear set of standards for conflicts checks similar to lower federal courts, Ellen Yaroshefsky, who teaches legal ethics at the Maurice A. Deane School of Law at Hofstra University, Hempstead, N.Y., told Bloomberg Law Nov. 13.

Failing to do so could even harm the public’s trust in the court as an institution, court watchers said.

Justice-by-Justice

Conflicts checks at the Supreme Court happen on a justice-by-justice basis, but each decides on a process for discovering them,Yaroshefsky said.

Individual chambers then carry out that process, Supreme Court spokeswomen Kathleen L. Arberg told Bloomberg Law in a Nov. 14 email.

Assistance is available, however. In particular, lawyers representing the parties will identify all of the parties as well as file “corporate disclosure statements in the briefs submitted to the court,” Arberg said.

Moreover, the clerk’s office and legal office are also “available to assist chambers as needed,” Arberg said. The legal office “provides support to the justices on a variety of case-related issues and legal services for the court as an institution,” according to a 2013 press release.

Evenly Split ... Again

That ad hoc system has led to some mistakes.

In the most recent case, Kagan’s chambers discovered that “while serving as solicitor general, she authorized the filing of a pleading in an earlier phase of” Jennings. At issue in Jennings is whether immigrants awaiting removal proceedings are entitled to a bond hearing.As a result of the conflict, Kagan “determined that she should not continue to participate in this case.”

But Kagan had already participated in oral arguments in Jennings—twice.

The court ordered reargument presumably because the shorthanded court was split 4-4 after hearing argument in late 2016. An evenly split court leaves the decision below in place and can lead to lower courts applying federal law inconsistently.

The court heard the case again in October when they had the full complement of nine justices.

Now, however, Kagan’s recusal raises the possibility that the court could split again 4-4, leaving the issue unresolved.

If the conflict had been identified and Kagan had recused herself earlier, the court could have decided the case 4-3 in the spring.

Stock Conflicts

Kagan’s untimely recusal isn’t the first.

Chief Justice John G. Roberts Jr. “missed a stock conflict in a case argued in December” 2016, “but recused from Life Technologies Corp. v. Promega Corp. once the error was brought to his attention in January,” a July 31 report by Fix the Court notes.

Justice Stephen G. Breyer was alerted to a similar stock conflict in 2015 after he’d already participated in oral argument. Breyer, however, decided not to recuse himself, noting that he’d already “devoted substantial judicial time to this case,” according to an Oct. 15, 2015, letter from the clerk’s office.

Breyer instead sold the offending stock and stayed on the case, as allowed under the Code of Conduct.

The justices of the Supreme Court have said that they aren’t technically bound by the Code of Conduct that binds lower federal judges, but each justice consults “the Code of Conduct in assessing their ethical obligations,” Roberts said in his 2011 Year-End Report on the Federal Judiciary.

Software Checks

These lapses demonstrate that “the institution needs a far more comprehensive conflict-check,” Roth said.

Indeed, lower federal courts have formal standards that they must follow when checking for conflicts, Yaroshefsky said.

“In September 2006, the Judicial Conference mandated that all courts use automated conflict-checking capabilities” in the case management and electronic court filing system, Charles Hall, a spokesman for the Administrative Office of the U.S. Courts, Washington, told Bloomberg Law in a Nov. 15 email. The Judicial Conference is the policy-making body for the federal courts.

“All appellate, district, bankruptcy and magistrate judges enter potential conflicts into the CM/ECF screening system, following the Code of Conduct guidelines,” Hall said. “Whenever a matching term appears in a new case filing, the judge is automatically informed.”

“A match does not by itself mean that there actually is a conflict,” he said. “That determination must be made by the judge,” who will then decide if recusal is necessary.

“Because legal judgment is required, the screening system involves technology and human assessment,” Hall said.

“The Judicial Conference report noted that ‘use of automated conflict screening is intended to be an addition to, and not a replacement for, each judge’s personal review of matters for conflicts,’” Hall said.

One Supreme Court

These standards, however, come from the Judicial Conference, a group made up of federal judges from all levels of the court system.

Most likely, that’s why the justices themselves don’t follow these laws, Roth said.

The “justices believe that any policies created by lower court judges cannot be forced upon them, as it would violate the ‘one Supreme Court’ principle of Article III,” he said.

“Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need,” Roberts said in his 2011 report.

The Supreme Court and the other federal courts are, therefore, fundamentally different, Roberts said.

“Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body,” he said.

Misplaced Trust

But the “best practices in transparency and accountability can and should be implemented across the judiciary, no matter what their origin is,” Roth said.

Such transparency would make it easier for counsel appearing before the courts to know when to expect, or when to ask for, a recusal in their case, Yaroshefsky said.

It would also be beneficial for the American public, so they could hold the justices accountable for their decisions, she said.

Moreover, it would benefit the court itself to adopt a uniform system, as instances of missed conflicts have the potential to hurt the institution.

“The American public trusts that the justices are deciding the cases that reach the high court without any bias,” Roth said.

Kagan’s recusal and prior instances of late recusals suggest that “such trust may be misplaced,” Roth said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com