Justice Alito's finances explain his recusals

By Mark Sherman

Associated Press

WASHINGTON (AP) -- Justice Samuel Alito bowed out of roughly six dozen matters that came before the Supreme Court in the past 10 months with no explanation. Alito's latest report of his finances clears up the mystery.

The justice and his wife, Martha Ann, inherited dozens of stocks when her father, Bobby Gene Bomgardner, died last year. Many of the cases in which Alito did not take part involved companies in which the Alitos now own shares.

The information was included in Alito's financial disclosure for 2012, which the federal judiciary released last Wednesday. The other justices' reports were submitted last month; Alito had requested an extension.

While justices have enormous discretion about when to step aside from cases, federal law gives judges no choice when they own even a share of a company that is a party in a case before them.

Alito's holdings include Abbott Laboratories, AT&T Inc., Boeing Co., Chevron Corp., IBM Corp. and Verizon Communications, as well as tobacco companies, other energy firms and pharmaceutical interests.

He sat out just one case that was decided by the court, a challenge to monetary agreements between brand-name drug manufacturers and makers of generics.

In two other cases in which he participated, Alito briefly owned shares of Comcast Corp. and Royal Dutch Shell. Both were purchased and sold in December, after the court heard argument in the cases involving the companies and several months before they were decided.

In the Comcast case, Alito was part of a 5-4 majority to reject a class-action antitrust lawsuit against the cable company. In the Shell case, the justices unanimously agreed to shut down a human rights lawsuit against the oil giant.

His other recusals came in matters in which the court was asked to hear appeals and said no.

Alito reported that a death led to the acquisition of the stocks, as well as investment accounts and mineral rights in Oklahoma worth at least $700,000 and as much as $1.25 million. The name of the person who died was blacked out in the report, but an obituary posted online shows that Bomgardner died a year ago at age 81.


If not entirely a mystery, another aspect of the court's recent term that is not entirely clear is why three liberal-leaning justices joined with Chief Justice John Roberts and Justices Antonin Scalia to find a way out of the California gay marriage case without deciding whether the Constitution should require states to allow same-sex couples to wed.

Those three justices, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan, said nothing when the case was decided in late June, instead joining Roberts' opinion that gay marriage opponents had no legal standing to appeal a lower court ruling that struck down California's Proposition 8. Proponents of same-sex marriage were happy with the outcome because it led almost immediately to the resumption of same-sex weddings in the nation's most populous state.

But the larger issue, the constitutional right to marry, was put off until another day.

Breyer, speaking in Aspen, Colo., recently, suggested why he might have been willing to do that when he invoked a predecessor's reluctance to rule once and for all on the topic of state bans on interracial marriage.

Justice Felix Frankfurter, writing Judge Learned Hand in 1957, said, "I shall work, within the limits of judicial decency, to put off decision on miscegenation as long as I can."

Breyer noted that the court already had decided the landmark Brown v. Board of Education case striking down segregation in public schools. But there was much more to do on civil rights, Breyer said, citing President Dwight Eisenhower's decision to use federal troops to integrate Central High School in Little Rock, Ark., and Martin Luther King Jr.'s crusade against segregation.

"Was Frankfurter right? That's something that is much debated, much debated," Breyer said at an Aspen Institute forum in a discussion prompted by a question about the court's ruling in the other same-sex marriage case, a challenge to a federal law denying benefits to legally married gay couples.

Breyer said it is hard to read the history of the civil rights movement "without thinking maybe Frankfurter was right, because the most important thing was to get this principle of desegregation accepted."

Another 10 years went by and Frankfurter was no longer on the court when the justices eventually took up marriage bans and declared unanimously in 1967 that states could not prohibit interracial marriage. Sixteen states forbade such marriages at the time.

Same-sex marriage now is legal in just 13 states and the District of Columbia, although that number has more than doubled in just the past year. And Breyer acknowledged that public attitudes on gay rights are far ahead of where they were regarding race in the late 1950s.

In the months before the ruling, Ginsburg offered her own analogy to the court's Roe v. Wade abortion decision in 1973, which she suggested was too much, too soon and in part responsible for provoking a backlash against abortion rights. Kagan has maintained public silence on the issue.


Breyer video and transcript online: http://www.aspeninstitute.org/events/2013/07/03/susman-conversation-individual-constitutional-rights.

Published: Mon, Jul 22, 2013