


One week after Justice Elena Kagan gave an unprecedented written explanation for declining to participate in a Supreme Court case, Justice Samuel Alito declined to follow suit.
Last week, Kagan offered court watchers a breadcrumb of hope that they would no longer have to speculate why a justice decides to sit out from hearing a case. Her decision was cited by experts as potentially motivated by a new statement of ethics signed by the justices amid recent scrutiny of the justices' ethical obligations.
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The high court released orders Tuesday in which it rejected several petitions, including one from energy companies BG Gulf Coast LNG and Phillips 66 disputing fees imposed on tankers by a Texas county for a waterway project. The list noted that Alito "took no part in the consideration or decision of this petition."
Alito's recusal was likely due to his family's ownership of around $15,000 to $50,000 in Phillips 66 stock, according to information from his 2021 financial disclosure obtained by the judicial ethics watchdog Fix the Court.
But Alito's recusal did not explain why he did not participate, forcing court watchers to look deeper for a recusal reason. Kagan's recusal last week avoided that problem, stating she was not taking part in a Florida capital case because of her "prior government employment" while citing the federal recusal statute and code of conduct for U.S. judges.
Kagan's decision to offer more clarity about her recusal comes as several justices have been the subject of investigative reporting about alleged ethical lapses, with the biggest accusations surrounding Justice Clarence Thomas and his close friend, wealthy GOP donor Harlan Crow.
Her decision also reflected a letter Chief Justice John Roberts sent to the Senate Judiciary Committee on April 25 identifying various recusal and disclosure practices. That statement was signed by all the justices and advised that “a Justice may provide a summary explanation of a recusal decision.”
Several legal experts were hesitant to call Alito's non-explanation a contradiction of his commitment to that statement because the clause about recusal states a justice "may provide" an explanation, not "must."
Professor Orin Kerr of the University of California, Berkeley School of Law questioned a Slate column headline that suggested it took Alito "Barely a Month to Violate the Supreme Court's New Ethics Rules," tweeting that his method of recusal does not appear to be a rule violation.
Can I ask a question about this? The Chief's statement said that they "may" provide an explanation, not that they will. Seems fair to point out that "may" is weak; it doesn't require anything. But not sure why not explaining then "violates the rule."https://t.co/sG1JsGsNl3
— Orin Kerr (@OrinKerr) May 30, 2023
Kerr said he appreciates the idea of justices including a recusal explanation, saying, "It's helpful transparency, and seems easy to do.
"I hope the justices do this going forward. But the chief's letter only said they 'may' do this, not that they would," Kerr added.
Kagan gave the 133rd recusal of the current term last week, and her detailed reasoning was lauded as “possibly the first time ever, and definitely for the first time in more than 100 years” that a justice provided a detailed explanation, Fix the Court's head Gabe Roth said.
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Last week, Case Western Reserve University law professor Jonathan Adler told the Washington Examiner that Kagan's action "might indicate a new practice" following the justices' statement on ethics.
"Note, however, that statement indicates disclosure of the reason for recusal is not always appropriate," Adler said.