Dred Scott trivia

The Dred Scott decision (1857) is, of course, an abomination of the common "law." Among other travesties, it includes Chief Justice Taney's remark that blacks were "at that time [of the Founding] considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race and . . . had no rights or privilege but such as those who held the power and the Government might choose to grant them." This remark is all the more terrible for being true.

Here's the trivia. Dred Scott was represented at the Supreme Court by one George Ticknor Curtis, who had formerly been the United States commissioner charged with the enforcement of the Fugitive Slave Law in Boston. There were two dissenting opinions in the Dred Scott case, including a very long one by Justice Benjamin Robbins Curtis—the brother of Dred Scott's lawyer. Although this presents a clear conflict of interest, there is no record that anyone objected or moved for Justice Curtis to recuse himself.

Shortly after the Dred Scott decision, Justice Curtis permanently recused himself—he resigned in disgust.

Oops.

From time to time we see stories about how justices on the Supreme Court aren't recusing themselves enough. It is rare to see a justice agree with these articles. However, according to this post on Law.com Justice Alito has admitted that he should have recused himself on the "fleeting explicatives" case. Justice Alito says he made a mistake by hearing a case where he owned stock in one of the defendants.

In 2008, the Supreme Court heard FCC v. Fox Television Stations. The case was about whether the FCC could fine TV stations when a fleeting explicative was uttered (an example might be someone swearing during a speech after winning an Academy Award). ABC was one of the defendants in the case. ABC, as you probably know, is owned by Disney. Justice Alito owned stock in Disney when the case was heard. Apparently, his mother thought it would be a good present for Justice Alito's children to each own $1,000 in Disney stock. In particular she thought her grandchildren would enjoy having the actual stock certificates. I think we can all remember the happy days of our youth when we would pull out our stock certificates and make trades with the other kids in the neighborhood for the stocks we liked. Sometimes someone would make a foolish trade, say Sony for American Motors Corp., but that is how kids learn.

The case was a 5-4 case with Justice Alito joining the majority to reverse the appellate court. A 4-4 tie would have meant the appellate court decision would stand. As such, Justice Alito's participation in the case was a big deal.

Because of his ownership of Disney stock (the article isn't clear as to why grandmother Alito gave the stock to the Justice rather than the grandkids. It is also unclear on why Justice Alito thinks he lost money when he evntually sold the Disney stock. ), Justice Alito should have recused himself. The reason for this recusal is that one might think that a judge who owns a piece of the defendant would rule for the defendant regardless of the merits of the case. Justice Alito, however, stuck his thumb in the eye of his corporate masters and joined the majority in ruling against ABC.

What do we make of Justice Alito's admission that he made a mistake? Should justices admit that sort of thing? Does Justice Alito's admission give you more faith in the judiciary? Does Justice Alito's ruling against ABC call into question the theory on when judges should recuse themselves? Finally, what should ABC do about the fact that it lost because Justice Alito should have recused himself?

At least they hear cases.

As Mr. Torvik has noted, the members of the Wisconsin Supreme Court do not seem to get along with each other very well. On the other hand, at least they show up to work. As WVNS-TV reports, all five justices on the West Virginia Supreme Court of Appeals recently recused themselves on a case involving work done by one of the justices when she was lawyer. Or perhaps it is a case about how little work she did. In any event, and perhaps mindful of the spanking the United States Supreme Court gave them about recusals, the court is turning this over to a collection of West Virgina circuit court judges.

The thing that caught my attention about the case is that, according to her bio on the court's website, Justice Workman has been a judge since 1981 (and the first woman elected to statewide office in West Virgina at that) and on the West Virginia Supreme Court since 1988. Since she has been a judge for 30 years, how is it that she is also running Margaret Workman Law L.C., the respondent on the appeal? It turns out that Justice's Workman's bio omits the fact that she was not on the West Virginia Supreme Court from 2000-2008. When running to return to the court, she told the Wheeling Intelligencer and News-Register that she stepped down to stay at home with her children. That does not appear to have been entirely accurate because if it were the citizens of West Virginia would not be paying their supreme court justices to stay home.