Monday, June 20, 2011

Wal-Mart and the Scalias

The media certainly accurately reported the significance of the 5-4 Wal-Mart v. Dukes decision (penned by Justice Scalia) that the Supreme Court issued yesterday. The New York Times is certainly correct that this opinion represents a "bad day" for civil rights claimants. The Wall Street Journal is also correct that decision is a major win for large corporations generally and will impact claims ranging from securities fraud to products liability.

Much less reported is the fact that Wal-Mart was represented by Eugene Scalia's law firm, and Eugene Scalia represented Wal-Mart in the past. A Wal-Mart watch group circulated a petition seeking Justice Scalia's recusal. It is hard for me personally to imagine objectivity in a case where my daughter's firm was representing a litigant. Apparently, however, the Supreme Court disagrees. A bill in Congress may alter this outcome.

In the meantime, as I mentioned in my last blog, Eugene Scalia represents the Business Roundtable in litigation against the SEC concerning the SEC's rules on shareholder proxy access to nominate directors of publicly held firms. Will Justice Scalia recuse himself from this litigation? That would seem appropriate.


  1. I agree that it would seam impossible for Judge Scalia to not have some prejudice or lack of impartiality in the Wal-Mart case based on the fact that his son Eugene worked with the firm representing Wal-Mart. In the “Statement of Recusal Policy” dated November 1, 1993 agreed to by all seven judges; although the judges agree that it would be detrimental to the court to force recusal based on the involvement of a family member in a case; they also agree that if there is a perceived potential of financial gain for said family member then a recusal would be necessary. Although the firm Gibson, Dunn & Crutcher “presented a letter to the court saying that Eugene would not receive any earnings from any cases that reached the Supreme Court”, it would be impossible for these cases not reflect positively on his career, standing and financial gain within the firm, which would definitely conflict with the Supreme Court position that the financial gain of a family member would be reason for the recusal of a judge.
    I believe that the fact that Judge Scalia did not recuse himself on this case follows the same logic that was the basis of the Wal-Mart v. Dukes decision that a pervasive underlying violation of rights is permissible when not acted on in a bold and verifiable manner.

  2. It is right to expect a high degree of personal responsibility, integrity, and transparency from the members of the Supreme Court. It is unfortunate that Justice Scalia chose to participate in this case and create a perception of partiality, rather than recuse himself.

    As stated, “a bill in Congress which could alter this outcome”. H.R. 862 offers the application of the Judicial Conference’s Code of Conduct to the justices of the Court and assists in developing ways to enforce the Code of Conduct for the members of the Supreme Court. As reported, this would be a step in the right direction. It is unfortunate that a law would be necessary to impose this ethical responsibility on the Court. And, ironically, the legislator who co-authored the bill, former Rep. Anthony Weiner, has suffered from too much “transparency” and “overexposure”, thus diminishing his impact and influence in this issue.