Recusal Quiz Answered

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?

The answer:

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.