Justice Alito’s Failure to Recuse

Several news organizations (e.g. AP, Bloomberg, and the WSJ Law Blog) are reporting on the revelation that justice Samuel Alito inadvertently failed to recuse himself from FCC v. Fox Television, despite holding 2,000 shares of Disney stock on behalf of his children. Disney had an interest due to its ownership of ABC, which was a party to the case. Justice Alito has acknowledged the error and has since divested himself of the stock.

This is not the first time something of this sort has happened. Justice Ginsburg made similar errors some years back. There is also no suggestion this was anything other than a simple oversight. The decision was 5-4, however, and did reverse and remand the lower court’s decision, so Justice Alito’s participation did influence the outcome. Bloomberg quotes University of Pittsburgh law professor Arthur Hellman commenting that it is unlikely any of the parties will seek to reopen the case, as the underlying controversy remains in the courts, and could be back before the Supreme Court shortly. Interestingly enough, Justice Alito voted against Disney’s interest and subsequently sold the shares for a loss.