The dishonest, ginned–up campaign to smear originalists on the Supreme Court has always been predicated on half-truths and innuendo. But Slate’s Mark Joseph Stern is now accusing Samuel Alito of “violating” completely imaginary SCOTUS ethic “rules” in a case involving Phillips 66.
According to Stern, even when originalist justices properly disclose all their investments and then recuse themselves, they’re still corrupt. Why?
The justice did not explain his reason for recusing, one of Roberts’ promised “practices.” To obtain that information, you must dig through his financial disclosures, which reveal that he holds up to $50,000 of stock in Phillips 66, one of the parties. Alito is one of two sitting justices who still holds individual stocks (as opposed to conflict-free assets like mutual funds).
First off, an explanation for recusal is not, in fact, one of “Roberts’ promised “practices.” The “Statement on Ethics Principles and Practices” plainly states that in “many instances, the grounds for recusal will be obvious,” but that justices “may provide a summary explanation of a recusal decision” or “may provide an extended explanation for any decision to recuse or not recuse.” There is no “rule.”
The above italics are mine. Because the word may, meaning “to express the possibility,” has a different definition than words like “will” or “must,” which denote an obligation or duty. So, for example, one may refer to a person who cynically delegitimizes constitutional governance for the sake of power as an “irredeemable authoritarian hack masquerading as a journalist,” but one is not required to do so.
The word “may” does not appear in a document drafted by Supreme Court justices by accident. As Roberts explains in the letter cited by Slate, compelling an explanation for every recusal “might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases.”
Indeed, Stern’s attack rests on the rickety notion that Alito is trying to conceal something from the public. When he claims, “you must dig through [Ailito’s] financial disclosures,” what he really means is opening the “Fix the Court” website (or just following the press release that likely gave him the idea for the piece in the first place) and looking at the justice’s publicly available disclosure. In this case, to “dig” means — generously speaking — five minutes of time.
And since this isn’t the first instance that Alito has recused himself in a case involving Phillips, the grounds for recusal are “obvious.” That doesn’t stop Stern from framing the lack of an explanation as some kind of major ethical lapse. To do so, he juxtaposes Alito’s recusal with Elena Kagan’s recent explanation of recusal in Holland v. Florida without any relevant context.
In Holland v. Florida, Kagan might have become the first justice to offer an official explanation for a recusal in history. Good for her. Alito conducted himself in the same manner that hundreds of justices have conducted themselves in thousands of other recusal cases. Since Roberts sent his ethics statement to Congress, there have been 11 recusals in the Supreme Court without any corresponding explanation — not something Alito’s accusers deem worthy of mentioning.
Instead, Stern claims that “Kagan was never the problem” (she’s even turned down free bagels from her high school friends, she’s so virtuous.) Her explanation for recusal was simply “(prior government employment),” which, explains Stern, is “a shorter way of saying that she participated in the proceedings while serving as solicitor general.”
Kagan should have eaten those bagels and recused herself from NFIB v. Sebelius and King v. Burwell, cases revolving around a national reform law and mandate for which her office had “mounted an early and aggressive effort to prepare for legal challenges to the individual insurance mandate,” according to The Hill. That was more than enough for her to sit those cases out. But since the Obama administration refused to turn over all emails related to the case, we can also strongly suspect Kagan had personally lent her expertise in anticipation of legal challenges.
As usual, it’s all just Calvinball. For instance, while Alito’s recusal over a disclosed stock is a big ethical problem, Sonia Sotomayor failing to recuse herself from multiple cases involving a publisher who paid her over $3 million while she was on the court is just fine.
For the record, justices shouldn’t be compelled to automatically bow out of cases involving companies or industries they’ve dealt with unless there is a genuine and clear conflict of interest. None of these attacks have ever produced a single case in which an originalist justice has strayed from their beliefs to help a company, person, or industry, much less themselves. Then again, the ugly irony of the Democrat’s attacks is that their anger is fueled by the principled judicial philosophy of certain justices.
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