The Supreme Court’s Health-Care Stock Problem

I've noted before the problems with Supreme Court justices who view themselves as exempt from the ethics and conflict of interest rules applied to the federal judiciary. Typically, among the most blatant offenders are Clarence Thomas and Antonin Scalia who consort with far right conservatives and, in the case of Thomas, receives significant family income from his wife's far right activities. But it's not always the conservatives who raise eyebrows. Now, with the health care law before the Court, a piece in The Daily Beast looks at the lack of clear rules applicable to the Court's justices. Here are some highlights:

Federal judges who own more than $25 of company stock are required to recuse themselves if a case comes before them that involves the company in question. If they fail to do so, they can be charged with a felony. But what about the Supreme Court? And more specifically, what about the current case involving health care? Should Supreme Court justices who own stock in health-care and pharmaceutical companies recuse themselves?

In the past, Supreme Court justices have removed themselves from certain cases. . . .

But they are not required to do so. It is left to the discretion of the individual Supreme Court justice to decide whether a financial conflict exists.

No member of the Supreme Court has stepped aside in the health-care reform case currently before them, even though two of the justices apparently own far more than $25 in health-care-company stock. By far the biggest owner of health-care stock is Justice Stephen Breyer.

Justice Samuel Alito also owns shares in health-care stock, holding up to $45,000 in Bristol-Myers Squibb.

Did Breyer and his family sell their shares in health-care companies before oral arguments on the Obamacare case began this week?Last year, Breyer sold his stock in Nestle so he could participate in a case involving that company. The Supreme Court Public Information Office is not saying whether a similar move was made in this case.

Does any of this matter? . . . . The reason the restriction [on other federal judges] requiring recusal was instituted in the first place was to remove any doubt that financial factors were at play.

But the larger question is, shouldn’t Supreme Court Justices put their assets in a blind trust? They are not required to. . . . . They make their own judgments about whether a conflict of interest exists.

This is a tradition in the Supreme Court. But it’s time to change it. Just as the growth of scope in government made congressional insider trading a real problem that warranted legislative reform, so too the growing scope of the court, and its ability to shape the stock valuations of companies warrants greater reform. Why not require Supreme Court justices to put their assets in a blind trust? Or at the very least to put their assets in mutual funds, not individual stocks?