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Justice Alito and Colleagues Pick and Choose When to Sit Out Cases

Like many of his colleagues, Justice Alito seems to be confused about the customs governing recusals, unwritten though they may be for Supreme Court justices. He admitted – albeit three years after the fact – that he made a mistake by participating in a 2008 case involving television company ABC, given his ownership in its parent company, Disney.

More recently, he recused himself from one (some would say minor) case involving a Pepsi bottling company – he owns thousands in Pepsi stock – but sat for a higher-profile case involving a similarly situation bottling company, National Labor Relations Board v. Noel Canning, which tested the constitutionality of President Obama’s recess appointments.

The Supreme Court does not require justices to explain the reasons for their recusals, and it’s clear why this opaque practice must end. While we do not assume Justice Alito and his colleagues to be acting improperly, there is no reason for them to hide behind this antiquated practice that leave the media and members of the public guessing if and when a justice has a potential conflict of interest.

Fix the Court is calling on Chief Justice Roberts to establish a formal recusal reporting procedure in which justices would submit the reason for their recusal to the court’s Public Information Office, which would then post the reason on the court’s website. And we’re calling on the court to make it easier for attorneys and members of the public to file a request for recusal in any case.

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