A Startling Case in Which the Supreme Court Fails To Do Its Duty

It is hard to put the gloss on the Supreme Court’s decision to refuse to hear the case of one Ralph Baker, a humble citizen serving as his own lawyer against no less a journalistic figure than Ta-Nehisi Coates. Mr. Baker insists that his self-published memoir, “Shock Exchange: How Inner-City Kids From Brooklyn Predicted the Great Recession and the Pain Ahead,” was plagiarized by Mr. Coates in his own memoiristic writing.Yet the justices of the high court couldn’t even muster a quorum to weigh whether a district judge, and then the Second United States Appeals Circuit, erred in deciding that Mr. Baker had failed to meet his burden of showing sufficient similarity between his own work and Mr. Coates’s to prove copyright infringement. Justices Samuel Alito, Sonia Sotomayor, Neil Gorsuch, Amy Coney Barrett, and Ketanji Brown Jackson recused themselves without being asked to.The Nine’s docket notes only that those justices “took no part in the consideration or decision of this petition,” but it appears as if the recusals in this case about authors is attributable to the justices harboring literary aspirations. Four of them have had or will have books published by Penguin Random House, whose parent, Bertelsmann, is a named party in Baker v. Coates. Moonlighting as authors apparently prevented the justices from doing their day jobs.Of the five justices who recused here, only Justice Alito has not signed a contract with Penguin Random House. If a justice sits out a case, there is no pinch hitter on the bench to replace him. That irreplaceability is one basis for what Chief Justice Rehnquist has called the “duty to sit,” meaning that justices are required to hear cases except when they are obligated to step aside — if they ever are — when their “impartiality might reasonably be questioned.”Democrats have run roughshod over this resistance to recusal, attempting to pressure two of the court’s stalwarts — Justices Clarence Thomas and Alito — to step aside on spurious grounds. In 2023, the court, for the first time in its history, adopted “ethics rules and principles that guide the conduct” of its members. Never mind that Chief Justice Roberts has warned that “much can be lost when even one Justice does not participate in a particular case.”How about when five take a pass in the same case? “The absence of one Justice risks the affirmance of a lower court decision by an evenly divided Court,” Chief Justice Roberts has noted. Here the court was not even divided — it was non-existent. It fled for fear of being seen as conflicted by their lucrative book contracts. Writing opinions can hardly compete with popular prose. Justice Sotomayor has made more than $3 million from her memoir. The five recusals left in place the Second Circuit’s finding for the publisher. Think of it. Faced with siding with Bertelsmann and Mr. Coates against Mr. Baker, these recusing judges effectively sided with the publisher — and without even bothering to furnish their reasoning. Recusal not only failed to cure the problem, it compounded it by closing the court’s doors to the case. That is less of a hearing than even rejected petitions for certiorari receive. Mr. Baker’s suit names as defendants not only Mr. Coates and Bertelsmann, but also the Atlantic, Oprah Winfrey, Apple, the Apollo Theater, MGM Studios, and the Walt Disney Company. Will such lists be designed to engineer recusals? Does this mean that the highest court in the land cannot hear any case involving Penguin Random House or its corporate relatives? It would, in our view, be better had all nine justices done their duty to sit.

A Startling Case in Which the Supreme Court Fails To Do Its Duty

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