Bloomberg Law
July 23, 2020, 10:36 PM

Kavanaugh Urged to Sit Out Facebook Case Due to Friendship

Kimberly Strawbridge Robinson
Kimberly Strawbridge Robinson

A coalition of progressive groups is calling on Justice Brett Kavanaugh to recuse himself from a case involving Facebook Inc. scheduled for next term due to his ties to the company’s policy chief, Joel Kaplan.

“At a time when Facebook’s growing influence in Washington and the Roberts Court’s pro-corporate bias are already under scrutiny, Kavanaugh failing to recuse himself would undermine any semblance of equal justice being done in this case,” said a statement released by the groups, which include Demand Justice.

Kaplan’s presence at Kavanaugh’s contentious confirmation hearing, at which he heatedly denied Christine Blasey Ford’s sexual assault allegations, generated concerns at the tech-giant in 2018. Facebook employees complained that Kaplan’s presence signaled the company was turning its back on sexual assault survivors, according to the New York Times.

Kaplan later apologized, but added that he’s known “Brett and Ashley Kavanaugh for 20 years. They are my and my wife Laura’s closest friends in D.C.”

The groups’ request highlights the lack of transparency surrounding high court recusal.

It’s really up to the discretion of each of the individual justices, Fordham University’s Robert J. Hume said. “It comes down to what the justices think they can get away with.”

Something to Watch

The case Kavanaugh is being urged to sit out on asks what counts as “autodialer” under the Telephone Consumer Protection Act. A broad interpretation of the term could subject companies like Facebook to penalties of $1,500 per violation.

In this case, Noah Duguid, who says he’s never been a Facebook user, brought a class action alleging that the company violated the TCPA when it sent him several “alerts” about his account. Duguid was unable to unsubscribe from the messages.

Facebook says the lower federal courts have come to different conclusions as to what qualifies as an autodialer, leaving companies open to massive liabilities and confusion.

Transparency group Fix the Court, which has aggressively urged the justices to shed conflict-causing financial stocks, said Kavanaugh probably doesn’t need to recuse here, although that might not be the case in future matters involving Facebook.

“I could see a scenario in a few years where the more liberal Facebook employees sue the company over some equal protection claim that would not have existed but for Kaplan’s influence in company policy,” said Fix the Court’s Gabe Roth. So “I think it’s a dynamic worth watching.”

Costless Recusal

The Supreme Court’s public information office declined to comment on whether Kavanaugh will recuse from the case.

Notably, though, Kavanaugh didn’t recuse himself while considering whether the court should even take up the case, as justices normally do when they think they are conflicted out of a case.

Close relationships have led to recusals before, including during the recently completed term.

Justice Sonia Sotomayor belatedly recused herself in a case about so-called faithless electors because she was friends with one of the named parties.

Importantly, that case had originally been consolidated with a similar case out of another state. The court decided to split the cases, allowing Sotomayor to participate in the one in which she didn’t have a potential conflict.

Her recusal there was essentially costless, Hume said, because she could still weigh in on the matter.

In the Facebook case, however, there’s no companion cases before the justices, leaving the possibility that an eight-member court could split evenly.

Public Perception

Hume said it’s unlikely Kavanaugh will recuse, pointing to an unusual memorandum from then-Justice Antonin Scalia, in which he refused to recuse from a case in which Vice President Dick Cheney was a named party. The two had attended a hunting trip together.

“A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be utterly disabling,” Scalia wrote. Many justices have reached the court because they have friends in high places, he said.

Regardless of whether to recuse or not, Roth said it can be helpful to explain the decision “where there’s a strong public sentiment toward disqualification.”

Though exceedingly rare on the high court, “recusal explanations demonstrate that a judge or justice is thinking critically about potential conflicts of interest, which, however small, is a positive step toward greater transparency,” Roth said.

The decision, though—whether to recuse and whether to explain their reasoning—is totally up to the justice, Hume said.

While there is a federal statute that applies to lower federal court judges, the justices take the position that Congress cannot bind the Supreme Court itself, as another branch of government.

The justices have publicly said they follow the law as guidance.

A Fix the Court report revealed that the justices recused 145 times over the past term.

Most involved “prior work” recusals, that is, something about their previous job that conflicts them out of the case. Justice Neil Gorsuch sat out a tribal jurisdiction case that was decided while he was still on the Tenth Circuit. Justice Elena Kagan recused from a case that was related to another she’d worked on as U.S. solicitor general.

There are also recusals for stock ownership and some for personal relationships. In addition to Sotomayor, Justice Stephen Breyer has a habit of recusing when his brother, a federal judge in northern California, presided below.

But there’s “no magic formula” for Supreme Court recusals, Hume said.

What it really comes down to is public perception, he added. Each justice must decide whether their impartiality, and thus that of the court’s, could reasonably be questioned if he or she participated in the case.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at