Can Brett Kavanaugh be impartial about Facebook?
Photo by Brendan Smialowski / AFP via Getty Images
As Facebook battles mounting regulatory pressure, one of the most powerful judges in the country is facing renewed scrutiny over his ties to the company. On July 24th, a coalition of nine progressive groups, including Demand Justice, Freedom From Facebook and Google, and Accountable Tech, released a statement calling on Supreme Court Justice Brett Kavanaugh to recuse himself from a case involving Facebook due to his close friendship with the company’s vice president of public policy, Joel Kaplan.
The case in question — a lawsuit brought by non-Facebook user Noah Duguid that argues Facebook violated anti-robocall rules by sending out unsolicited text messages — is minor in terms of platform regulation. But Kavanaugh’s decision here could set a precedent for more pivotal cases to come.
“The top lobbyist at Facebook called Kavanaugh his ‘closest friend in Washington’ and even hosted a private celebration for Kavanaugh at his home after he was confirmed despite multiple, credible allegations of sexual assault,” a statement from the coalition reads. “Brett Kavanaugh cannot possibly claim to be neutral in this case.”
Kaplan, who previously served in the George W. Bush administration, played an instrumental role in helping Kavanaugh secure his place on the Supreme Court. “The night before Justice Anthony Kennedy stepped down in June 2018, Kaplan, a senior Facebook executive, phoned ‘influential conservative lawyers’ to ask if they would ‘be with Kavanaugh,’” reported Ruth Marcus in Supreme Ambition: Brett Kavanaugh and the Conservative Takeover, according to an article in the Daily Beast.
Kaplan also sat behind his friend during a Senate hearing over allegations of sexual assault from Christine Blasey Ford — a move that angered Facebook employees. “Many employees also viewed it as a statement: Mr. Kaplan believed Mr. Kavanaugh’s side of the story rather than Dr. Blasey’s testimony,” reported The New York Times. In a statement to the policy team, Kaplan explained that he and Kavanaugh were close friends. “I have known Brett and Ashley Kavanaugh for 20 years,” he said. “They are my and my wife Laura’s closest friends in D.C. I was in their wedding; he was in ours. Our kids have grown up together.”
This friendship is at the center of the argument coming from progressive groups. While Supreme Court justices are not bound to an ethics policy that forces recusal in this regard, under 28 U.S. Code § 455, a judge “shall” disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.”
Earlier this year, Justice Sonia Sotomayor took herself off a case about how presidential electors cast votes because of a “personal friendship with one of the challengers” named Polly Baca, according to NBC News. “Baca, a former state senator, has been Sotomayor’s friend for decades. Baca’s sister and brother-in-law lived for a time in Sotomayor’s New York apartment, and Baca herself had a prominent spot at the justice’s Senate confirmation hearing,” the article reads.
But Kavanaugh is under no formal obligation to follow Sotomayor’s lead. “The law does not provide clear guidance,” says Barbara McQuade, former US Attorney for the Eastern District of Michigan. “The language is about ‘his impartiality might reasonably be questioned.’ Based on that language, you could argue that the public would reasonably question his impartiality. It seems like the closeness of their friendship is more than speculative. It’s not as clear cut as a financial or family relationship. But it seems like the standard of reasonably questioning Kavanaugh’s impartiality has been crossed.”
The counterbalance to this argument is that judges have a duty to hear cases if there isn’t a clear conflict of interest. “Justices are wrong to fail to recuse themselves in cases where they should. But it’s equally wrong to recuse yourself if you don’t have a conflict of interest,” McQuade says.
This reasoning underpinned Justice Antonin Scalia’s decision not to recuse himself from a 2004 case involving his friend Dick Cheney. “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,” he wrote in a memorandum. “Many Justices have reached this Court precisely because they were friends of the incumbent President or other senior officials—and from the earliest days down to modern times Justices have had close personal relationships with the President and other officers of the Executive.”
To some, including Sen. Elizabeth Warren (D-MA), Scalia’s reasoning highlights the need for a binding ethics policy for the court. “It’s time to ensure that judges do not hear cases where they have conflicts of interests, strengthen our nation’s ethics rules for judges, and ensure accountability for judges who violate these rules,” she wrote in a statement on her website. Warren has promoted a reform policy that would, among other things, “prohibit judges from deciding for themselves whether they should recuse from a case due to a conflict.”
Today, Facebook faces antitrust probes from the Justice Department and the Federal Trade Commission as well as an investigation by 45 state attorneys general, according to a report in Bloomberg. If the cases result in significant action — forcing Facebook to limit ad targeting or divest from Instagram, for example — they’ll almost certainly face a court challenge, and that challenge could be decided by the Supreme Court. That’s why progressive groups see Kavanaugh’s decision here as so important. “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,” the statement from the coalition reads.
So far, Kavanaugh’s actions indicate he does not plan to recuse himself from the case. Typically, if justices are going to do so, they will announce it when the court is deciding whether to hear the case, which Kavanaugh did not do. The Supreme Court did not immediately respond to a request for comment from The Verge.