Aereo Backstory: One Supreme Court Case, Three Recusals, One 'Unrecusal,' Much Uncertainty

US Supreme Court Building - H 2012
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US Supreme Court Building - H 2012

As Aereo and the broadcasters face off Tuesday in a one-hour oral argument at the Supreme Court, one noteworthy aspect of the case is likely to go unaddressed: the presence -- and absence -- of several key players. The lineup on the bench will include justices Samuel Alito and Elena Kagan. The lawyers at the podium are expected to include Deputy Solicitor General Edwin Kneedler (UPDATE: actually, deputy solicitor general Malcolm Stewart argued), but not the higher-ups, Solicitor General Donald Verrilli or his principal deputy, Ian Gershengorn.

Behind each of those individuals is a story.

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Alito's situation has been previously reported. In January, he was listed in the Court's docket as recused from the case, i.e., not participating. On Wednesday, he was listed as back in action -- unrecused, if you will. Neither status was explained.

"It's likely that Alito initially recused but can now participate because he sold stock," says Amanda Frost, a judicial ethics expert at American University Washington College of Law. She pointed out that this was so in two other cases, but added "There are other [potential] reasons. Perhaps he decided his initial decision to recuse was mistaken, for example. Unfortunately, we can't know for sure why he recused, and everything about recusals remains a bit of a mystery."

Also previously reported is the fact that Verrilli and Gershengorn are recused, which was disclosed in a footnote in the amicus brief the government filed in March. The brief offered no explanation. The Hollywood Reporter noted that Verrilli had previously represented Hollywood in a Supreme Court copyright case, but it turns out his involvement in the Aereo backstory is more specific than that.

To understand how, we need to look momentarily at the legal backstory -- i.e., precedent. Aereo has tied its fortunes to a 2008 case in the 2nd Circuit Court of Appeals that upheld the legality of Cablevision's remote storage DVR against a challenge from broadcasters. Indeed, that precedent is considered the reason that Aereo first rolled out in New York, which is part of the 2nd Circuit's jurisdiction.

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Aereo's strategy was successful, at least initially. When the broadcasters sued Aereo in New York, the district court and then the 2nd Circuit both found in favor of Aereo, citing on the Cablevision case. The latter decision is what is now on appeal at the Supreme Court.

But rewind to Cablevision. What did the broadcasters do when the 2nd Circuit handed them a loss? They appealed to the Supreme Court, of course. And the lawyer who wrote the cert petition -- the appeal document -- was none other than Verrilli, then a lawyer in private practice at Jenner & Block. Among the other lawyers on the brief was Gershengorn, also at Jenner at the time.

That involvement may well be the reason they recused themselves. Among the plaintiffs were ABC, CBS and NBC, who are plaintiffs in Aereo as well. Says Harvard Law School's Andrew Kaufman, an expert in legal ethics, "It seems plausible to assume that Verrilli and Gershengorn decided that the work they did for a private client before they were in government was sufficiently related to the issue in the present case that they should not participate in it."

"Participation as a private advocate in a recent, closely related case would ordinarily be a reason for the SG or principal deputy not to participate in a case on behalf of the United States," agrees Paul Bender, dean emeritus of Arizona State University's law school and a former principal deputy solicitor general. "If the SG is recused, he would have had nothing to do with the case while it was in the SG's office. Ordinarily the principal deputy would take his place, but he is apparently recusing himself as well. Ed Kneedler, who is the next senior lawyer in the office, would then become Acting SG for the case."

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But is it really possible for two lawyers -- Verrilli and Gershengorn -- who advocated on behalf of broadcasters to keep their opinions to themselves in such an important case? Bender says yes.

"As far as I know, the firewall procedure in the SG's office would be 100 percent effective. It certainly was that on the two occasions when I worked in the office," he says. "It is very easy in that office for lawyers not to talk to each other about particular cases."

He adds, "Ed Kneedler, by the way, is a senior government lawyer of enormous integrity. The chance that he would do anything ethically questionable is extremely remote."

Kaufman concurs, saying he assumed that "the other professionals in the SG's office will take the position that they think is the appropriate one for the office to take, uninfluenced by the fact that two of their colleagues were paid to argue a particular position in a previous case." Reflecting the high regard in which the office is held -- the SG is sometimes referred to as "the 10th justice" -- Kaufman adds, "I would think that especially lawyers in the SG's office would be most scrupulous in that regard."

Skeptics do exist, however. "They are just pro-cop[yright]," said Pamela Samuelson, a U.C. Berkeley expert on copyright and information technology, in a previous email interview. "Verrilli was the lawyer who argued for MGM in the [Supreme Court] Grokster case and the Obama folks are cozy with Hollywood."

Keith Swisher, founder of the Judicial Ethics Forum blog and a professor at Arizona Summit Law School, says "an analogy is worth noting: courts or codes in many states require that the entire office be disqualified when its head is disqualified. The worry is that (1) the boss, even though personally disqualified, will still influence the decisions of the other lawyers in the office, and (2) in any event, the office's continued representation would create the appearance of impropriety (whether in the minds of the other parties or the public generally)." In Swisher's opinion, "This situation appears analogous, at least."

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Now back to Cablevision.

What happened when the case was appealed? The Supreme Court declined to take the case. One reason may be that the government sided with the cable company, not the broadcasters: the solicitor general filed a brief arguing that the case did not "satisfy the court's traditional criteria" for hearing a case. And the solicitor general at that time? None other than Kagan, who was subsequently appointed to the Supreme Court. It's a small world, after all.

That may raise the question of why Kagan didn't recuse herself from today's Aereo case, since she took a position on what is probably the key precedent implicated in the matter. Interestingly, the experts THR spoke to all said no recusal was necessary.

Mark Harrison, who chaired the American Bar Association committee that revised the Model Code of Judicial Conduct, says "I don't think there's any basis for Kagan to recuse."

"The fact that she, while SG, took a position in an amicus brief in a case that may be a key precedent in the one that is about to come before her, does not provide a mandatory basis for her recusal," says Richard Flamm a Berkeley attorney whose practice since 1995 has related to attorney and judicial ethics matters.

"I get that there is issue overlap between the Aereo case and the prior case in which Kagan was involved," says Indiana University judicial ethics expert Charles Geyh, "but that is not enough."

Why not? Because the law doesn't require it.

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American University's Frost explains, "The most relevant provision of the recusal statute, 28 USC section 455(b)(3), provides that a judge or justice must recuse 'Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.' "

In other words, because Cablevision and Aereo are two separate cases, the statute doesn't impose recusal.

But there is another section of the statute, as Chapman University's Ronald Rotunda, co-author of the most widely used course book on legal ethics, points out.

He says justices ought to explain their recusal decisions (even though they don't have to), and "when [Kagan] does that, she could also explain why section 455(a) also doesn't apply. That is the catch-all provision, 'shall disqualify' if her 'impartiality might reasonably be questioned.'"

He adds though, "It is a vague provision and for that reason I do no like it. I think Congress should provide clearer guidelines."

Even so, the experts don't think this section is a reason for recusal.

"I think it would be a bad idea to require the justices to recuse from all cases that rely -- even heavily -- on cases they litigated in the past," says Frost. "Such a broad recusal rule would be disruptive to the court's work, and could lead the parties to game the system by claiming to heavily rely on cases a particular justice was involved in to get her to recuse. And I just don't think it's necessary to protect the system."

Bruce Green, director of a legal ethics center at Fordham University, says "A judge has no obligation to recuse herself in a case that raises a legal question similar to one on which, as a lawyer, she previously advanced a position" and sees this risk: "Can you imagine if Thurgood Marshall, as a justice, had to recuse himself in every civil rights case?"

"Justices who served as SG before coming to the court have usually participated in a lot of cases that are potential precedents to cases on the court's docket," says Bender. "My impression is that that does not usually result in a recusal."

He offers yet another reason for that: "Justices … are reluctant to recuse themselves, especially in cases in which the court may be closely divided, because, unlike the situation on most other appellate courts, a recused justice cannot be replaced by anyone else …, and there is a danger that a court composed of eight Justices will split 4-4 and be unable to render a majority opinion."

Does Kagan's prior position on Cablevision make her a vote for Aereo? Not necessarily. Green says, "There's certainly not an assumption that judges are bound to the legal views that they previously advanced as advocates." And, as THR previously discussed, a vote to uphold Cablevision is not necessarily a vote in favor of Aereo; the court may seek to distinguish the cases somehow.

So -- one Supreme Court case, but three recusals, one unrecusal and one nonrecusal. Are we done yet?

Not quite. Want one more "zero degrees of separation"?

This one's been previously reported, but it's worth a reminder. Look back to the lower courts again. The district judge in Cablevision was Denny Chin. He found in favor of the broadcasters, and was reversed by the 2nd Circuit. Five years later, he got a second bite at the apple (and still in the Big Apple, no less): When the three-judge panel was appointed for the Aereo case, Chin -- who had in the meantime been elevated to the appellate bench -- was one of the judges randomly appointed. Not surprisingly, he sided with the broadcasters again, paving the way for the 2-1 decision in favor of Aereo that's now on appeal.

Ethical dilemma much?

Hat tip to entertainment litigator Harvey Geller for pointing us to the Verrilli, Gershengorn and Kagan backstory.

Email: jhandel99 at gmail dot com
Twitter: @jhandel