U.S. Supreme Court Justice Samuel Alito Jr. has recused in several important cases recently, leaving some lawyers involved scratching their heads – or wondering if he has recently expanded his investment portfolio.
His most high-profile recusal this term came Oct. 9, when the court’s orders list stated that Alito took no part in the denial of review in Chevron v. Naranjo, a long-running effort by Ecuadoran natives to seek damages from Chevron for causing extensive pollution in their region.
Like most justices, Alito declined to explain his recusal. And key lawyers in the case – Chevron’s lawyer Theodore Boutrous of Gibson, Dunn & Crutcher and James Tyrrell Jr. of Patton Boggs, the lawyer for the plaintiffs – declined to speculate on Alito’s reasons. Unless there is an obvious connection – such as a justice’s ownership of stock in a company that is a party to the case – lawyers tend to shy away from second-guessing a justice’s recusal decision.
Some possible explanations for the Chevron recusal have not panned out. In his 2011 financial disclosure form, Alito reported owning between $1001 and $2500 in ExxonMobil stock – but ExxonMobil has no connection to the Chevron litigation. Alito’s son Philip worked as a summer associate at Gibson Dunn in 2011, but there is no evidence that he worked on the case – and even if he did, that would probably not be a reason for recusal.
When he first joined the court in 2006, Alito signed on to a 1993 statement of recusal policy drafted by justices with family members who were or could become lawyers. Under that policy, a relative’s past participation in a case would not trigger a justice’s recusal unless the relative was lead counsel or his or her reputation depended on how the Supreme Court ruled. Alito has not recused in other cases brought by Gibson Dunn.
Alito does have a personal connection on the other side of the case. Tyrrell, the plaintiff’s lawyer, was a law clerk to Judge Leonard Garth of the U.S. Court of Appeals for the 3rd Circuit in the 1970s, as was Alito. Alito and Tyrrell are longtime friends, but that would not ordinarily trigger recusal.
Alito might have bought some Chevron stock since 2011, but that won’t be known until next year when his disclosure statement for 2012 is released to the public.
Likewise, it is possible Alito has picked up some telecom stocks, which could explain his recusal, also on Oct. 9, from deciding not to grant review in Hepting v. AT&T. In that case, AT&T and numerous other telecommunications companies were sued for secretly supplying caller information to the government in the name of security.
If Alito now does have telecommunications stock, he may follow in the footsteps of retired Justice Sandra Day O’Connor. She had small holdings in Baby Bell companies that were sufficient to keep her out of the dozens of cases involving telecom companies that were filed at the high court. The acronym OOPS – for O’Connor Owns Party Stock – developed as a result.
It is similarly difficult to explain Alito’s recusal in denying review of Metropolitan Edison v. Pennsylvania Public Utility Commission, a dispute over utility rates. As of the end of 2011, Alito reported owning no utility stocks.
On Oct. 15, Alito also recused when the court turned down a petition in the pharmaceutical patent case Allergan v. Watson Laboratories. In 2011, Alito listed Bristol-Myers Squibb stock among his investments, but that company was not a party to the Allergan case.
The Bristol-Myers Squibb stock almost certainly did figure in another recusal, however. Alito took no part in the denial of review in Pieczenik v. Bayer, a copyright case aimed at numerous pharmaceutical companies including Bayer and Sanofi-Aventis. Bristol-Myer Squibb has a partnership with Sanofi-Aventis.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York