Stoneridge and the Unrecusal of Chief Justice Roberts

Two justices, Breyer and Roberts, had indicated that they would not participate in Stoneridge.  The speculation was that it had something to do with stock ownership by the justices in various parties in the case.  There had been rumours flying around that one or both would "un-recuse," presumably by selling the shares.  According to the WSJ Law Blog, this is what has happened with respect to the Chief Justice.  He will now apparently participate in the oral arguments slated for October 9. 

We have written about the line up on the Supreme Court with respect to Stoneridge, anticipating a 4-3 decision, with Justice Alito the deciding vote.  With three of the Justices having opposed the elimination of secondary liability in Central Bank (Justices Ginsburg, Stevens and Souter) and three having voted the opposite way (Justices Scalia, Thomas and Kennedy), it came down to Justice Alito.  Which ever way he went, however, neither side was likely to get a majority.

The presence of the Chief Justice changes the calculus.  It is possible that one of the two sides will probably obtain a majority, something enhanced by the regularity with which Alito and Roberts vote together.  Moreover, at this point, the guess would have to be that both will side with the 8th Circuit and affirm the decision.

The decision by the Chief Justice shows that he very much wants to participate in the decision, an indication that he has his mind made up.  In other words, this is very much a result oriented decision.  In the courts of appeal, some attempt is made to protect against result oriented decisions through the requirement that cases be assigned to panels on a random basis.  There is no such luxury at the Supreme Court.  It is, however, likely to lead to further dissention on the Court, an environment described this Sunday by the NYT this way:  "According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000."

Comments

[Herrick Lidstone]

This is the one of the most significant securities cases in years, perhaps since Central Bank. Your analysis and insight are valuable.