Canadian Lawyer

16 A P R I L 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m If you're a judge, owning securities is a tricky thing. The potential for conflicts of interest is obvious. Like Caesar's wife, a judge must be above suspicion. Strong rules are needed to protect the public good and preserve confidence in the judiciary. Some commentators go so far as to argue that judges and members of their family should not be allowed to own individual stocks, being restricted to index funds or the like. Others say that, as a minimum, judges must fully and publicly disclose their investments and, of course, recuse themselves at the first sign of a conflict. In the United States, the 1978 Ethics in Gov- ernment Act requires financial disclosure by federal judges. But Life Technologies demonstrates that even strict disclosure requirements can fail. Anyone can look up the financial disclosure statements of U.S. Supreme Court justices on the Internet. These reports are not just boring lists of stocks and bonds. You can, for example, find out about trips the judges have taken that were paid for by somebody else. In 2015, Justice Stephen Breyer (personal worth estimated to be about US$16 mil- lion) took 19 trips with someone else footing the bill, including two to Paris and three to London. You can find out about lucrative side gigs. In 2015, Chief Justice Roberts earned about US$13,600 (plus expenses, of course) from the Uni- versity of Tokyo for teaching a summer course about — guess what — the U.S. Supreme Court. Then there are the gifts. For example, in 2015, Harlan Crow, a Dallas real estate developer and impor- tant donor to the Republican Party, gave Justice Clarence Thomas a US$6,500 bronze bust of Frederick Douglass, the famous abolitionist who died in 1895. (Yes, that Frederic Douglass; the one recently described by President Donald Trump as "an example of somebody n early January, U.S. Chief Justice John Roberts suddenly recused himself from a pat- ent case, Life Technologies v. Promega. The Supreme Court had already heard oral arguments in the lawsuit, during which Roberts asked what news reports described as "probing" questions. After the hearing, the chief justice participated in the usual meeting of judges to discuss the case, cast his vote and likely assigned the writing of the majority opinion (possibly to himself). Only then did he realize that he owned almost $200,000 worth of shares of Life Technologies' parent company, Thermo Fisher Scien- tific (papers filed in Life Technologies made clear that Thermo Fisher was the parent). Roberts' investment in the parent company was shown on his 2016 financial disclosure statement, but it was apparently overlooked by everybody and forgotten by Roberts himself. After all, there's a lot to think about if you're chief justice of the United States of America and, to be fair, $200,000 or so is a small fraction of the chief justice's estimated net worth of US$4.2 million. T O P C O U RT TA L E S O P I N I O N @philipslayton I SCOTT PAGE Disclosure for judges Financial disclosure is commonplace for the judges on other top courts, so why not for Canada's? By Philip Slayton WHERE DO WE LOOK FOR ASSURANCE THAT A JUDGE HAS NO FINANCIAL CONFLICT OF INTEREST? WE MUST RELY, FAUTE DE MIEUX, ON THE INTEGRITY AND EFFICIENCY OF JUDGES AND THEIR STAFF.

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