At a time when the chief judge of New York State’s highest court is suing in a court inferior to her to get a raise, what is one to make of the case of American Isuzu Motors v. Ntsebeza? That is the case in which opponents of South African apartheid are trying to get damages from American corporations that did business in South Africa during the years of the apartheid regime. The case wended all the way up to the Supreme Court of the United States, where the corporations discovered they could not get heard because three of the nine justices on the court owned shares in the defendant companies and another justice has a son who was employed by one of the defendants. So the case has been returned to New York.

It turns out that the way the law — section 455 of Title 28 of the United States Code — is written, a justice is required to abstain from hearing a case if he or she owns stock in one of the parties. Hmmmm. Does the logic thereof require that justices abstain from a case in which they have any financial interest in the result? If that’s how the justices feel, what does that tell us about the prospects for Judge Kaye’s pleading once it works, if it works, its way to the highest bench? Will the judges suggest the lower courts in New York should have recused themselves?

It strike us as not beyond the realm of possibility that at some point the justices may conclude that the law requiring their recusal is itself unconstitutional, as it has the power to incapacitate the ability of the court to act, something it’s hard to figure the Congress has the right to do, even if it created the jobs of most of the justices on the court — and, in any event, the inferior courts of the federal system. Is the fact that Justices Roberts, Alito, and Breyer owned stock in some of the corporate defendants, which included, among others, IBM and Bank of America, really going to doom the judges’ ability to make an honorable decision?

We have no doubt whatsoever that Justice Alito and Justice Breyer and Chief Justice Roberts could have heard the case fairly, even if that meant a market loss for each. The law requiring their recusals is an unwarranted insult to our judges. In the case of Justice Alito, ownership of Exxon Mobil has prompted two recusals this term. In addition to the apartheid case, Justice Alito could not hear a case involving the Exxon Valdez oil spill where it is possible that the high court’s forthcoming decision will tie four-to-four. It’s far from clear to us that in such a circumstance the recusal would be better than taking the risk that Justice Alito could, despite his holding, make an honest decision.

Justice Scalia, who refused to step down from a case involving his hunting pal, Vice President Cheney, wrote: “If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.” He also wrote: “While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the stable of Washington reportage, this Court cannot. The people must have confidence in the integrity of the Justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find footfaults.” Judge Kaye and her colleagues, seeking a ruling from their own system in respect of their own pay, may have occasion to hope that the rest of the court system agrees with The Great Scalia. So too will shareholders in many companies who may lose their chance for an appeal based on in what a judge happens to have invested.