Wednesday, June 1, 2011


From time to time we see stories about how justices on the Supreme Court aren't recusing themselves enough. It is rare to see a justice agree with these articles. However, according to this post on Justice Alito has admitted that he should have recused himself on the "fleeting explicatives" case. Justice Alito says he made a mistake by hearing a case where he owned stock in one of the defendants.

In 2008, the Supreme Court heard FCC v. Fox Television Stations. The case was about whether the FCC could fine TV stations when a fleeting explicative was uttered (an example might be someone swearing during a speech after winning an Academy Award). ABC was one of the defendants in the case. ABC, as you probably know, is owned by Disney. Justice Alito owned stock in Disney when the case was heard. Apparently, his mother thought it would be a good present for Justice Alito's children to each own $1,000 in Disney stock. In particular she thought her grandchildren would enjoy having the actual stock certificates. I think we can all remember the happy days of our youth when we would pull out our stock certificates and make trades with the other kids in the neighborhood for the stocks we liked. Sometimes someone would make a foolish trade, say Sony for American Motors Corp., but that is how kids learn.

The case was a 5-4 case with Justice Alito joining the majority to reverse the appellate court. A 4-4 tie would have meant the appellate court decision would stand. As such, Justice Alito's participation in the case was a big deal.

Because of his ownership of Disney stock (the article isn't clear as to why grandmother Alito gave the stock to the Justice rather than the grandkids. It is also unclear on why Justice Alito thinks he lost money when he evntually sold the Disney stock. ), Justice Alito should have recused himself. The reason for this recusal is that one might think that a judge who owns a piece of the defendant would rule for the defendant regardless of the merits of the case. Justice Alito, however, stuck his thumb in the eye of his corporate masters and joined the majority in ruling against ABC.

What do we make of Justice Alito's admission that he made a mistake? Should justices admit that sort of thing? Does Justice Alito's admission give you more faith in the judiciary? Does Justice Alito's ruling against ABC call into question the theory on when judges should recuse themselves? Finally, what should ABC do about the fact that it lost because Justice Alito should have recused himself?

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