Federal law requires judges to sit out cases if they own even a single share of stock in any of the parties to a lawsuit. In the past, Justice Roberts has not taken part in cases involving Pfizer because he owned less than $15,000 of the company’s stock, according to his latest report of personal finances, which covered 2009.
But when the court announced Tuesday that it had accepted an appeal from several drug makers, including Pfizer, in a dispute over prices charged public hospitals, there was no indication that Justice Roberts would step aside from hearing the case.
As a result, he also will sit with his colleagues when they hear arguments Oct. 12 in another case involving childhood vaccines. Justice Roberts played no role when the court decided in March to hear the case.
Ms. Arberg offered no explanation for Justice Roberts‘ decision to sell the stock now, but it appears likely that Justice Elena Kagan’s need to sit out the two cases played a role in Justice Roberts‘ timing.
Justice Kagan, who joined the court in August, owns no stock in Pfizer, but was involved in the two cases at some point during her time at the Justice Department as President Obama’s solicitor general.
Having one justice out of a case sets up the undesirable possibility of the rest of the court dividing 4-4. In such cases, the lower court ruling stands, but the Supreme Court sets no precedent to guide lower courts. In essence, it’s a waste of time for the court to have considered the case.
Senate Judiciary Committee Chairman Pat Leahy, Vermont Democrat, introduced legislation Wednesday intended to keep the court at full strength, even when a justice is forced to step aside from a case. Mr. Leahy’s bill would allow the court to designate a retired justice, of which there currently are three, to fill in.
Retired justices already are allowed to sit in on other federal courts. Leahy said the idea was suggested to him by John Paul Stevens, just a few months before his retirement from the Supreme Court.
Even a 4-4 outcome, however, is preferable to the prospect of a 4-3 decision, which could result if two justices don’t take part in a case. In that instance, less than a majority of the nine-member court could render an important decision. On at least one other occasion, Justice Roberts sold stock to avoid having a seven-justice court hear a case.
The newest justice will be absent more often than not when the court hears its first set of cases over the next two weeks. Because of her work as solicitor general, Justice Kagan won’t take part in seven of the 12 cases the justices will take up in October.
She has so far taken herself out of 24 of the 51 cases on the court’s docket for the new term, leading former Attorney General Richard Thornburgh to joke that the court would begin its work “with the equivalent of eight and a half justices.”