Dukes v. Wal-Mart: Possible Recusal of Scalia Adds Wrinkle to Supreme Court as Oral Argument Takes Place

Justice Antonin Scalia sat on the bench during this week’s oral argument in Dukes v. Wal-Mart, despite calls for him to recuse himself from the case owing to his son, Eugene Scalia, being a partner with Gibson Dunn & Crutcher LLP, which represents Wal-Mart in the appeal. Among those seated in the gallery watching the proceedings: Eugene Scalia.

Justice Scalia’s disqualification would be unusual, as Supreme Court Justices typically do not recuse themselves from cases involving a family member’s law firm. However, Scalia was one of seven justices who in 1993 signed a policy that said they would not withdraw from a case unless there was some “special factor,” such as a relative’s status as lead counsel.

While Eugene Scalia is not active in litigating the Dukes appeal, he does chair Gibson Dunn’s Labor and Employment practice group, which is at least conceptually connected to the case, because the plaintiffs allege workplace discrimination. As a practical matter, though, it is Theodore Bourtos’ appellate group that is principally in charge of the day-to-day Dukes case management.

Those calling for Justice Scalia’s recusal (including Wal-Mart Watch, a union-funded advocacy group) contend that Eugene Scalia stands to benefit financially should his partnership profits increase as a result of the firm’s success in its Wal-Mart representation. In response, Gibson has implemented a procedure to exclude revenues from the Wal-Mart representation from Eugene Scalia’s partnership distribution, effectively an accounting take on the “ethical wall” by which firms isolate an attorney from specified information or matters.

Court watchers speculate that Justice Scalia will likely vote to reverse the Ninth Circuit’s ruling that affirmed the trial court’s discretion in certifying the class of approximately 1.5 million current and former Wal-Mart employees.