Sitting Out: Recusals Mount Among the Justices

Financial disclosure forms offer some insight, but questions linger.

, The National Law Journal

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Justice Samuel Alito on top of the steps of the Supreme Court.
Justice Samuel Alito on top of the steps of the Supreme Court.

As for Alito, his recusal in the POM case is one of many that cannot be explained by the stock holdings he listed in his 2012 disclosure. At the end of that form, Alito noted that he had acquired "new assets that did not appear" on prior years' reports because of a bequest from someone who died in 2012. The name of the person was redacted, but Alito's father-in-law, Bobby Gene Bomgardner, died in July 2012.

Like most justices, Alito does not publicly explain his recusals. But it is possible that the death in February 2013 of his mother, Rose Alito, may have resulted in another round of stock acquisitions that could explain his recusals this term.

For example, Alito recused on Jan. 10 when the court granted review in an important broadcast industry case, ABC v. Aereo. His 2012 form does not report any holdings in the Walt Disney Co., ABC's parent. But his inheritance from his mother, which won't be detailed until his 2013 form is released later this year, may solve the mystery.

There is one sign that Justice Alito may be starting to take action to reduce the impact of his recusals. On Jan. 10, the court said Alito was recused for unspecified reasons in Limelight Networks v. Akamai Technologies, a patent case in which the court granted review. Four days later, the court’s online docket carried a new notation: “Justice Alito is no longer recused in this case.”

Alito may have taken advantage of a federal law that allows judges to sell stocks to avoid conflicts of interest without incurring capital gains taxes—an exemption that members of Congress also enjoy. Actions by Chief Justice John Roberts Jr. and Justice Stephen Breyer suggest that they have used this technique in the past. It is also possible that Alito recused by mistake and has corrected the error.

Part of the stock-ownership problem is that federal law requires judges to recuse even if they own a single share of stock in a company before the court. "Bright-line clarity requires recusals that, if considered more contextually, would often appear wholly unnecessary," said Sample, who has written extensively about recusals.

Still, Sample believes that justices should consider the appearance of so many stock-based recusals.

"When a justice's individual stock holdings are so extensive as to necessitate scores of annual recusals, it raises the question of whether the balance of the justice's personal freedom and public role is slightly out of equilibrium," Sample said.

Contact Tony Mauro at tmauro@alm.com.

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