Roberts, Kavanaugh Recusals Seen Unlikely to Repeat on FCC Net Neutrality Reversal

Chief Justice John Roberts and Justice Brett Kavanaugh likely will participate if the Supreme Court is asked to review the FCC net neutrality rollback, said court watchers, noting justices have wide leeway on recusals. They recused themselves without explanation from a November decision not to consider the prior commission's 2015 Communications Act Title II net neutrality order (see 1811050008). Their apparent reasons -- possible conflicts over Roberts' shares and Kavanaugh's lower court participation -- aren't expected to be repeated if the current Republican-run FCC's Title I order comes before them.

The recusals of the two Republican-appointed justices were magnified when the three other GOP appointees were outvoted last month by the four Democratic appointees denying cert petitions on the 2015 FCC net neutrality order litigation. The decision let stand the U.S. Court of Appeals for the D.C. Circuit's 2017 ruling (see 1705010038) upholding the previous Democratic majority's regulation of broadband as a Title II telecom service and ISPs as common carriers.

"Supreme Court recusals are great mysteries and self-administered," emailed Stuart Brotman, University of Tennessee media management and law professor. "It's entirely at the discretion of the justices," and they don't have to spell out reasons, said Amanda Frost, an American University law professor who writes on judicial ethics. "Any answer is wholly speculative. The justices do what they want to do and never explain," agreed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. "Justices aren't bound by formal recusal rules the way the lower courts are," said Daniel Lyons, Boston College associate law professor.

But the Roberts and Kavanaugh net neutrality recusals aren't hard to fathom, observers said. Roberts is believed to have declined to participate because his AT&T stock ownership could have created an appearance of conflict. As of Dec. 31, Roberts owned $250,001-$500,000 worth of shares in Time Warner, says his May annual disclosure from tracker Fix the Court, which seeks transparency. AT&T bought TW and had filed a petition appealing the D.C. Circuit's net neutrality affirmation.

Roberts recused himself "presumably because of the AT&T stock and because AT&T was a party to the case," said Lyons. The AT&T concern "is why he stepped aside," said Fix the Court Executive Director Gabe Roth. Roberts also owned $100,001-$250,000 of stock in Charter Communications, which wasn't a litigant. Charter is a member of petitioner NCTA, but "that almost certainly" wouldn't have triggered recusal, said Schwartzman.

Newest Justice

Kavanaugh, the court's newest member, is thought to have recused himself because he reviewed the net neutrality regulation while at the D.C. Circuit. Dissenting from the 2017 en banc ruling upholding the 2015 Title II order in USTelecom, he disputed the court's deference to the FCC, cited ISP free speech concerns and said the better statutory read was that broadband is a less-regulated Title I information service.

"The Supreme Court is notorious for its lack of ethics rules," emailed Craig Holman, Public Citizen lobbyist, but the “norm” is that justices "recuse themselves from any court action in which they had previously participated." Justices always recuse themselves from cases they heard on a lower court, Frost said.

"Justices generally do not comment on their recusals," emailed a court spokesperson. "Justices look to the Code of Conduct for United States Judges and follow 28 U.S.C. 455, which ... substantively covers the recusal standards included in the Code of Conduct." For further guidance, she cited a 1993 statement of recusal policy of seven justices, which Roberts and Justice Samuel Alito later said they would follow, and Roberts’ 2011 federal judiciary report.

It's up to justices to interpret 28 USC 455, court watchers said. Roth said there's no effective enforcement mechanism. He and Lyons said justices have to consider that, unlike judges on most lower court panels, they have no replacements.

The D.C. Circuit is considering challenges to the current FCC order, with oral argument set Feb. 1 in Mozilla v. FCC, No. 18-1051 (in Pacer). The losing side could seek high court review.

Kavanaugh is seen unlikely to recuse himself if there are new cert petitions, despite his previous net neutrality involvement. It's "a new case," said Schwartzman, a net neutrality advocate: "Although it involves similar issues, it is a different case with a different record. I very much doubt Kavanaugh would feel that he must recuse." Kavanaugh's November recusal was limited to that case, said Holman: "If a new case addressing the same issue rises to the court, Kavanaugh would not be expected to recuse." Kavanaugh hasn't participated in the current litigation, "so I wouldn't expect a recusal," Lyons said.

Chief Justice

Roberts also is viewed as unlikely to sit out such litigation. Even if he still owns AT&T or Charter stock, they aren't parties to the case or expected to become parties. Neither is a petitioner nor has either intervened at the D.C. Circuit in support of the FCC order, which would let them petition for high court review if the commission loses. "The challengers are states, edge providers, and consumer advocacy groups," said Lyons: "I wouldn't expect a recusal."

Only "parties" can appeal a decision, "defined (for FCC cases) as petitioners, respondents and intervenors," emailed Schwartzman, in a view shared by other experts. "Others, including amici curiae, may not file an appeal," he added. "In theory, one could file a post-decision motion for leave to intervene with the court of jurisdiction and then, if the motion were granted, file an appeal. I doubt that has ever happened." He said, "I don't think Roberts would likely recuse." If AT&T or Charter became a party, Roberts could sell the stock and hear the case, several said. The companies didn't comment.

If Roberts owns stock in a petitioner, "that's clear: he has to recuse himself," said Frost. "Beyond that, it's fuzzy and vague," she said, though the question is: "Will his stock likely be affected by the decision the Supreme Court reaches?"

Certain scenarios raise questions, including petitions by associations representing companies whose stock a justice owns. CTIA, NCTA and USTelecom are telco and cable intervenors supporting the current order at the D.C. Circuit and would have the right to appeal an FCC setback, but experts doubted that possibility would likely trigger a recusal. "Justices typically don't recuse when one of the companies in which they hold stock is a member of a trade association appearing before the Court," Schwartzman emailed. "If it's just a trade group, by law, they're not required to recuse," though a justice could, Roth said. Similarly, he said, although a Judicial Conference committee opined that judges should strongly consider recusal if they own the stock of a company filing an amicus brief, they aren't required to do so, and the opinion doesn't cover justices.

The trade group and amici "loopholes" are a concern because "basically, the only problem is if he doesn't sell the stock and they're petitioners," said Roth. "There should be bright-line conflict-of-interest rules across the board."