Can’t let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse’s report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves on account of ” [f]inancial and personal conflicts of interest ” in the case, in which victims of the apartheid era seek damages from myriad corporations that did business in South Africa during that time. Over at Opinio Juris , Roger Alford wondered whether “anything like this” had occurred “in such an important case .” Convictions’ Recusal Quiz posed that question more pointedly:
In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?
Shelley v. Kraemer , decided May 3, 1948, in which the court held that a state judge violated the Equal Protection Clause of the 14 th Amendment by enforcing a deed covenant that forbade the transfer of property to African-American buyers.
The vote in Shelley was 6-0. The reason? Justices Robert H. Jackson, Stanley Reed, and Wiley B. Rutledge recused themselves; each owned property subject to racially restrictive covenants. Had one more justice been in the same situation, the court would have lacked a quorum in Shelley . Instead of a unanimous vote against, the result would have been a vote in favor of racially restrictive covenants—and that result would have obtained until either the composition of the court or the property holdings of its members changed.