U.S. Supreme Court Associate Justice Samuel Alito Jr. (Photo: Diego M. Radzinschi/NLJ.)
U.S. Supreme Court Justice Samuel Alito Jr. will participate in two cases set for argument next week in which he had previously recused himself, the court announced Wednesday.
The cases are POM Wonderful v. Coca-Cola Co., a false advertising dispute set for argument on April 21, and the copyright case ABC v. Aereo, to be argued April 22.
Like most justices, Alito does not explain his recusals, and his latest financial disclosure form in 2013 did not reveal any direct conflicts of stock ownership. But it is possible that the death in February 2013 of his mother Rose Alito resulted in stock acquisitions that could explain his more than 50 recusals this term. Those acquisitions won’t be revealed until his 2013 form is released.
If that is the reason for his recusals, it is likely that Alito sold the conflicting stock in recent days to allow him to re-enter the cases. Federal law allows justices, like executive branch officials, to sell stocks to avoid recusals without being hit with capital-gains taxes on the transactions.
Justice Stephen Breyer is still recused in POM Wonderful, so Alito’s participation raises the possibility of a 4-4 tie. In ABC, Alito’s actions will mean that a full nine-member court will consider the high-stakes dispute over high-tech ways of distributing television shows without paying fees to broadcasters.
Contact Tony Mauro at firstname.lastname@example.org. On Twitter: @Tonymauro.