Earlier this month, a federal judge upheld the ruling that BP was “grossly negligent” in the Deepwater Horizon oil rig explosion that crippled Gulf Coast economies dependent upon the water for income.
Because it doesn’t want to pay the settlement which it wrote itself, BP is continuing to try and get a case in front of the Supreme Court which would get it out of actually having to pay out that settlement.
While BP and the plaintiffs awaiting payments are waiting to hear if SCOTUS will actually take arguments, neither Justices Antonin Scalia nor Samuel Alito have recused themselves despite having family ties to the case.
Both justices have a son who works at the multinational law firm handling BP’s appeals, Gibson Dunn. Phil Alito became an associate with the firm’s Washington DC office in August 2013, and Eugene Scalia has been with the firm for over a decade and was made a full partner in 2003.
According to US law, federal judges must recuse themselves from a case if their “impartiality might be reasonably questioned” or if a close relative or close relative’s spouse “is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.”
SCOTUS, however, has its own policy regarding recusals. Seven of the nine justices, including Scalia, set the policy in 1993 and it was adopted by Chief Justice John Roberts in the current court. The SCOTUS policy says that “if a covered relative is an associate in a law firm involved in a case before the Court, but has not taken part in it at the Court previously, the Justice will be free to participate,” according to SCOTUS blog.
The policy also states that “if the relative is a partner in a firm appearing before the cout, the Justice would recuse himself in any case involving that firm ‘unless we have received from the firm written assurance that income from Supreme Court litigation is, on a permanent basis, excluded from … relatives’ partnership shares.’”
Gibson Dunn informed the Court in 2003 that Eugene Scalia’s portion of profits from such cases would be withheld, but that doesn’t change the fact that both Justices’ impartiality might be questioned. Their sons could stand to benefit indirectly from the decision even without directly getting money from any BP case.
Even though the SCOTUS’ self-imposed recusal policy doesn’t require the Justices to step down in any BP case it might hear, Scalia and Alito should recognize the conflict of interest and recuse themselves to show that the Court has no bias towards BP. It would show the plaintiffs and everyone else involved that the case has a chance at being resolved fairly with no family ties involved.
