Apartheid Case Will Proceed

For want of a quorum, the Supreme Court today allowed a controversial lawsuit brought by South African citizens to proceed against more than 50 American and foreign corporations for their role in perpetuating apartheid.

The companies, backed by the Bush administration and the South African government, had asked the high court to reverse a ruling by the U.S. Court of Appeals for the 2nd Circuit that said the suit could proceed under the Alien Tort Statute. The name of the case is American Isuzu Motors v. Ntsebeza.

But in the order released this morning, Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito Jr. indicated they had recused in the case, depriving the Court of the required six-justice quorum. Under law, when the Court lacks a quorum, the lower court rulling is effectively affirmed.

As usual, none of the justices stated his reason for recusing. For Roberts, Breyer and Alito, the reason almost certainly is stock ownership in companies that are named defendants. For Kennedy, the reason may be that his son Gregory is a managing partner of Credit Suisse, another defendant. In some recent cases Roberts has sold stock to remain in a case, but that did not occur here. Last month the Los Angeles Daily Journal reported here on the potential recusals in the case.

Stock-based recusals have been a long-simmering ethical issue for justices, prompting occasional calls for them to minimize or eliminate such holdings to guarantee a full Court whenever possible. Because today's action will have such a dramatic effect on a major case that the Bush administration has already said is causing the U.S. diplomatic embarrassment, those calls are likely to grow louder.

We'll have more details later. For a running account of recusals by justices in the last two terms, see our Recusal Report here.