We've discussed Justice Samuel Alito's truancy in the past, with the Justice sitting out of dozens of certiorari denials and initially recusing himself from this term's Limelight, Pom Wonderful, and Aereo cases, all likely due to conflicts presented by his stock portfolio. (Though the Justices do not disclose their reasons for self-recusal, Alito's financial disclosures have shed a lot of light on patterns of inherited and purchased stocks, past recusals, and botched non-recusals.)
With Alito benched, rather than on the bench, there was some concern over whether Aereo could end in a 4-4 tie, leaving the Second Circuit's pro-Aereo opinion intact, but also leaving the rest of the land (which includes anti-Aereo court decisions in other circuits) unaffected. Worry not though, as he just unrecused himself in Aereo and Pom Wonderful, days before oral arguments.
Yes, according to Reuters, he unrecused. A few months back, he had a conflict of interest. Now, he doesn't.
Care to guess why? Our best guess is a stock sale, since he's previously had issues in that regard. And thanks to the Court's unwritten rules that allow judges to make their own decisions on when to recuse and unrecuse, without any explanation, a guess is all we've got, at least until he makes next year's financial disclosures.
The Unrecusal Tax Break
The law, which went into effect in 2006, allows judges to defer capital gains taxes on dumped stock, so long as they reinvest the proceeds from the sale within sixty days in certain types of investments. According to Professor Marianna Brown Bettman, one of the driving forces behind the law's passage was Chief Justice John Roberts, who used the law twice in 2007 to unrecuse himself.
Was the tax break the reason for Alito's unrecusals? If so, and be becomes the deciding vote, there's going to be many sour grapes over his recusal flip-flopping and his last-minute switch to tip the court.
- More Alito Recusals Beg the Question: Why Not Blind Trusts? (FindLaw's U.S. Supreme Court Blog)
- Is it Time for a SCOTUS Code of Ethics? (FindLaw's U.S. Supreme Court Blog)
- How Many Ways Does SCOTUS Fail Technology and Transparency? (FindLaw's U.S. Supreme Court Blog)