Alito doesn’t bother to explain his recusal, while Jackson does

The Supreme Court issued a routine order list Tuesday that, as usual, largely consisted of the justices declining to review a bunch of pending petitions (the court takes relatively few cases, compared with the many requests it receives). But two of those denials highlighted different approaches from Justices Ketanji Brown Jackson and Samuel Alito in how they see their public duties. Jackson explained why she recused herself from a case. Alito didn’t. 

In the case Jackson recused from, the denial was followed by this explanation on the order list: 

Justice Jackson took no part in the consideration or decision of this petition. See 28 U. S.C. §455 and Code of Conduct for Justices of the Supreme Court of the United States, Canon 3B(2)(e) (prior judicial service).

The case came from the U.S. Court of Appeals for the D.C. Circuit, where Jackson sat as a judge prior to her high court appointment. The code of conduct section she cited says disqualification is warranted when a justice “has served in government employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed during prior government or judicial service an opinion concerning the merits of the particular case in controversy.”

With the case Alito recused himself from, the order merely said: “Justice Alito took no part in the consideration or decision of this petition.” No explanation.

Why did he recuse, then? Possibly for the same reason as Jackson. The case came from the U.S. Court of Appeals for the 3rd Circuit, where Alito sat prior to his high court appointment, and he may have participated in a prior related matter there. Though if that’s the reason, it’s worth pointing out that there’s no recusal listed from the denial of a Supreme Court petition in 2016 by the same person whose petition was denied Tuesday, and Alito noted his recusal from other cases that term.

It’s made all the more foolish because Alito apparently did the right thing in declining to participate in a case he shouldn’t have participated in. He just failed to finish the job by explaining his action.

At any rate, we shouldn’t have to speculate. It would be one (bad) thing if the court’s practice across the board were to not explain recusal actions, but Jackson’s, listed immediately prior to Alito’s on Tuesday’s order list, is a glaring example of the justices’ discrepancy in this area. It’s made all the more foolish because Alito apparently did the right thing in declining to participate in a case he shouldn’t have participated in. He just failed to finish the job by explaining his action.

Why not take this meager step? Again, we’re left to speculate. But one possibility is the code itself that Jackson cited. It’s a weak code, lacking an enforcement mechanism, but the justices issued it following prolonged criticism of the court’s ethics, including Alito’s, and he famously has taken umbrage at public scrutiny. He previously and incorrectly claimed that Congress lacked the power to impose a code on the justices. So even though it’s a weak code issued by the justices themselves, to acknowledge its legitimacy — and implicitly condone the public outcry and attendant Democratic support for a code — might be a step too far for the GOP-appointed justice.

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