Edward Lazarus

Will Chief Justice Roberts Have to Recuse Himself

in One of This Term's Blockbuster Cases, Wyeth v. Levine? Why Calls for His Recusal May Exemplify a Too-Costly Quest for Perfect Ethical Purity
By EDWARD LAZARUS
Thursday, Feb. 12, 2009

In the Supreme Court blogosphere this week, there was some speculation that, in the wake of pharma giant Pfizer's purchase of Wyeth, Chief Justice John Roberts might be forced to recuse himself from one of the biggest cases of the term. The case is Wyeth v. Levine, in which the Court will tackle the very significant question of whether the FDA's labeling requirements pre-empt state consumer protection laws designed to ensure product safety.

Chief Justice Roberts owns Pfizer stock and has previously recused himself from cases involving the company. So the question has now arisen whether Pfizer's swallowing of Wyeth – and thus Roberts's newly-created financial interest in the outcome of the Wyeth case – will cause him to step off the case.

This is a question of real consequence. In Wyeth, the company had complied with the FDA's demand that it warn against certain dangers in the administration of its anti-nausea drug Phenergan. And the question before the Court – one with broad implications for the industry -- is whether this compliance shields Wyeth from liability under potentially more stringent state laws. (In the case at bar, the laws at issue are those of Vermont where the plaintiff, badly injured when administration of the drug went awry, has sued.) As with other recent cases involving claims that federal law preempts state law, Wyeth is sure to be a close case – and the company's fate, as well as the fate of other pharma companies and a very large pool of potential plaintiffs, could easily rest on a single vote, such as the Chief Justice's.

In reality, there is little if any chance that Roberts will decide to recuse himself. As Wyeth's lawyer, former Solicitor General Seth Waxman, pointed out in a letter to the Court, the deal between Pfizer and Wyeth will almost surely not be completed until after the Court decides the case. And, thus, the Chief Justice's economic stake in the Wyeth case will not fully ripen until after a decision is rendered.

Moreover, even if this were not so, the case for recusal would still be weak. For practitioners, the ethics rules make accommodations when conflicts of interest arise in the midst of litigation as the result of previously unforeseeable events like mergers or acquisitions. Surely, the same concept should apply to judges when conflicts arise far into the decisional process, as has happened here. In any event, Roberts could avoid even the remote appearance of a conflict problem by simply divesting himself of his Pfizer stock.

Why Recusal at the Supreme Court Is Especially Costly and Should Not Be Chosen Lightly

But leaving aside the specifics of the Wyeth situation, the very fact that there is discussion of having the Chief Justice recuse himself from such an important case for such modest reasons serves as an important reminder that an obsession with ethical purity can often come at the expense of other important interests – and, as President Obama is fond of saying, perfection can become the enemy of the good.

When I was clerking for Justice Harry Blackmun, I remember the Justice taking scrupulous care to recuse himself from cases where it might be thought that he had a financial interest in the outcome, as, for example, when he held shares of stock in a company that was a party to a case. I admired Blackmun for his zeal on the subject. He thought even the slightest appearance of impropriety should be avoided.

But I also remember thinking that, as a practical matter, any concern regarding conflicts of interest was, for the most part, overblown. It seemed absurd to me that anyone could believe that, in the absence of really significant stock holdings, Justice Blackmun or any of the Justices would be swayed, even subconsciously, by the indirect prospect of some at best incremental financial gain or loss depending on how the Court decided a case. If Supreme Court Justices were truly this susceptible to corrupt thought, we were facing bigger problems than just recusal from cases!

On the other side of the coin, moreover, the price of recusal at the Supreme Court, in particular, is potentially very high. At the trial court or court of appeals level, one judge can be replaced by another, usually with a minimum of disruption. At the Supreme Court, by contrast, there is no one to sub in when one of the Justices recuses himself or herself.

This can have at least two profound effects. First, it may determine whether the Court grants review in a case. It takes four votes before the Court will hear a case – and the recused Justice might, in some cases, be that essential fourth vote. Second, the absence of a Justice may leave the Court divided 4-4 on an important issue of law. In the case of ties, the Court simply affirms the lower court decision without issuing an opinion – and this result can lead to uncertainty on important issues of law. (The absence of more than one Justice from a given case, a rare but not unheard-of occurrence, also often leads to plurality decisions that provide little guidance to lower courts or lawyers).

When you put all these factors together, it is hard not to conclude that, in the context of recusal, we may sometimes insist on (or choose voluntarily) extremely marginal gains in ethical purity at much greater cost to good decision-making.

The Larger Point: How Overly Strict Ethical Rules Can Lead to Game-Playing and to Injustice in Cases Where the Rule's True Purpose Is Not Implicated

There is perhaps a broader point to be made here, as well – one extending far beyond Wyeth, the Chief Justice, and the Court. Our devotion to ethical purity stems in part for an admirable high-mindedness. We want our government officials to be free from taint in both fact and appearance and for them to be exemplars of pure motives and good conduct.

But there is, increasingly, also a darker side to our stringent ethical standards. Ethics charges have become a means for gaining legal or political advantage, proxy wars that arise out of and track the substantive schism that divides us. We take scalps under the guise of ethical concerns, exploiting relatively minor foibles or trivial potential conflicts of interest by claiming the "appearance" of impropriety, regardless of whether the improprieties are meaningful, intentional, or grounded in common sense reality.

This is not to say, of course, that we should condone genuine conflicts of interest or serious failings (like not paying significant tax liabilities). But when we get to the point of expecting our public servants to be altogether without blemish, or when we are willing to suspect them of being susceptible to the most indirect and trivial corrupting influences, then the cost we are paying for ethical purity is a price in lost talent and judgment. That is a price that we will come to rue paying when, from our state of pristine sinlessness, we realize how dear that price was, and how little of substance we have gained from the sacrifice.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.