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.

Correction: An earlier version of this article incorrectly identified the federal district court where Charles Breyer, whose brother is Justice Stephen Breyer, is a judge. Charles Breyer sits on the U.S. District Court for the Northern District of California.

The growing pace of recusals by U.S. Supreme Court justices this term is fueling new concern about the court's ability to function at full strength.

Justice Samuel Alito Jr. has recused himself 52 times since the term began in October, a pace that could exceed his roughly 70 recusals last term. Most appear to have been triggered by his inheritance of stock in companies that are parties before the court — though many of the conflicts are not obvious from his most recent financial disclosure form. In most of the recusals, Alito bowed out of decisions that denied review of petitions before the court.

"Fifty-two recusals to this point in the term is an astounding number, regardless of how many of the cases were granted," said James Sample, a judicial ethics expert at the Maurice A. Deane School of Law at Hofstra University. "While justices holding individual stocks is not new, it may be that the extent and reach of those individualized holdings, in certain instances, is now great enough to risk diminishing the finite public resource" of the court as a nine-justice institution.

American University Washington College of Law professor Amanda Frost, who has written about Supreme Court ethics, agreed. "If Alito inherited the money, then it might have been hard for him to immediately sell it, so I think he should be given a reasonable amount of time to do so," she said. "But all the justices should make an effort to avoid such conflicts."

Alito is not the only justice stepping aside. Justice Elena Kagan has recused herself more than twice as often as Alito so far this term — 113 times — but almost all appear to be explained by her involvement in the cases as U.S. solicitor general before she joined the court in 2010. Last term, for the same reason, Kagan recused herself 220 times.

Justice Sonia Sotomayor has recused herself 31 times this term, almost all in cases that came from the U.S. Court of Appeals for the Second Circuit, where she was a judge before joining the Supreme Court in 2009.

SITTING OUT

A small number of the justices' recusals represent multiple actions taken at several stages of the same case. But still, the overall numbers are large enough to affect some of the cases in which the court has granted review — not just the thousands of petitions the court turns down every year.

The most prominent example this term is POM Wonderful v. Coca-Cola Co., an important Lanham Act case challenging the accuracy of a label for a pomegranate product made by Coca-Cola's Minute Maid brand. When the court granted review on Jan. 10, it announced that both Justice Stephen Breyer and Alito "took no part in the consideration or decision of this petition." That is the standard language that signals a justice's recusal.

As a result, when the case is argued, probably in April, two seats on the court will be empty and seven justices, not the usual nine, will decide the outcome.

According to their most recent financial disclosures — released last summer and reporting their assets as of 2012 — neither Alito nor Breyer reported owning Coca-Cola stock. (POM Wonderful Holdings LLC is not publicly held.)

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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