While Justice Alito admits to making a mistake in not recusing himself in a 2011 case, in years following he has been especially carefully, most of the time, to sit out cases in which there is a perceived conflict.
Unfortunately, due to the antiquated rules at the Supreme Court, the public was left in the dark for months in 2012 and 2013 when Alito recused himself in petition after petition – some six dozen – that came before the justices for a cert. determination.
It wasn’t until the summer of 2013 that we learned that Alito’s reason for recusal was that he had inherited a sizeable amount of stock from his father-in-law, who had passed away the year prior.
Similarly, there was no publicly stated reason when in 2014 Alito went from recusing himself in POM Wonderful v. Coca-Cola, about fruit juice labeling, and ABC et al. v. Aereo, a case about streaming broadcast TV, to off the sidelines and onto the cases. “No explanation was given, but presumably he has cleared up a conflict that had induced his recusal,” SCOTUSblog wrote at the time.
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 Chief Justice Robert and his colleagues to be acting improperly on a regular basis, 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 the chief justice 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.