WASHINGTON • Justice Neil Gorsuch has recused himself from a case that is set to be argued in days after ethics watchdogs and Democratic lawmakers urged him to step aside because the outcome will likely affect the financial interests of a billionaire to whom he has long-standing ties.
The terse disclosure, made in a letter from a clerk to the Supreme Court to lawyers involved in the case, did not specify a reason, saying only that the decision was “consistent with the code of conduct.” But the announcement, issued late Wednesday, was unusual for a case that the court agreed to take in June.
The case involves a proposed railroad in Utah and an environmental regulation governing the project. Neither the billionaire, Philip Anschutz, nor his companies are a party to the case. But the railway would provide better shipping service to an area of Utah where Anschutz has oil wells, so he could benefit from an outcome favorable to the railroad company.
And an oil and gas exploration company owned by Anschutz has filed a friend-of-the-court brief urging the justices to curtail the environmental rule at issue — a regulation his company must also obey when developing wells on leased public land. The brief says the rule has led to “absurd requirements” that cause “significant harms to the project developers and the economy.”
Gorsuch’s recusal is particularly significant for two reasons. During his 2017 confirmation to the Supreme Court, his web of ties to Anschutz attracted attention, raising questions over whether he would step aside in cases involving the billionaire’s business interests. He appeared to leave that door open, despite having sought to recuse himself from such cases as an appeals court judge.
Against that backdrop, Gorsuch had been under growing public pressure to recuse. In October, ethics and watchdog groups, led by Accountability US, called on Chief Justice John Roberts in an open letter to intervene. A month later, more than a dozen Democratic members of Congress sent a similar letter to Gorsuch urging him to recuse.
The recusal is also notable because it comes amid broader scrutiny on ethics at the Supreme Court, particularly after revelations that Justice Clarence Thomas accepted — and sometimes failed to disclose — lavish trips and gifts from billionaire Harlan Crow.
Legislation to impose an ethics code on the justices has stalled, but in November 2023, the court unanimously adopted its first code of conduct. The New York Times has reported that in internal debate over the code, Gorsuch insisted that it contain no enforcement mechanism beyond voluntary compliance.
The code added some gloss to a vague 1974 statute that says justices should recuse themselves to avoid even the appearance of a conflict of interest. But Supreme Court justices have argued that they have a heightened “duty to sit” for cases because there is no one to replace them if they step aside, unlike at the appeals court level. The court’s procedure is to let individual justices decide for themselves whether the standard for recusal is met; there is no appeal if they decide to stay on a case.
While two Democratic-appointed justices, Elena Kagan and Ketanji Brown Jackson, have since publicly cited the code in recusing from certain cases, the new letter appears to be the first time a Republican-appointed justice has publicly cited it, said Gabe Roth of Fix the Court, a group that has pressed for stronger ethical standards.
Most recusals happen because justices own stock in a company or have another personal financial conflict, or because justices had presided over the same case at an earlier stage, when they were still lower-court judges, Roth added. Recusals for personal ties to people who could benefit from the case — Gorsuch’s presumed reason, though the letter did not specify — are “very rare,” he said.
Anschutz has myriad ties to Gorsuch, a Colorado native. Early in his career, the future justice represented Anschutz and his companies in a variety of lawsuits as outside counsel. In 2005, Gorsuch formed a limited liability company with two lieutenants to Anschutz, through which they jointly bought a 40-acre vacation property to share. Once Gorsuch joined the Supreme Court, they sold the property to the head of a major law firm.
In 2006, Anschutz, a major conservative donor, played a major role in helping Gorsuch secure President George W. Bush’s nomination to a seat on the federal appeals court in Denver. And after joining the appeals court, Gorsuch appeared as a keynote speaker at the billionaire’s annual dove hunt parties at his ranch.
Caroline Ciccone, the president of Accountable US, which first raised public alarms about the matter, pressed for the Supreme Court to have greater transparency and more enforceable ethical standards.
“Justice Gorsuch only recused himself after this glaring conflict was brought to light,” she said in a statement, adding: “This recusal is another reminder of how the justices’ cozy relationships with billionaires and special interests continue to plague the Supreme Court and keep public trust in the court at an all-time low.”
Still, Roth praised the decision.
“Part of the recusal statute and the code of conduct says that a justice should recuse if their impartiality might reasonably be questioned,” Roth said, adding, “Given all of Gorsuch’s ties to Philip Anschutz and his companies, a reasonable person might impute bias. I think it is absolutely the right call.”
This article originally appeared in The New York Times.
