The Supreme Court issued three opinions Thursday, none of which were on Donald Trump’s immunity claim, abortion, guns or anything of the sort. One of them was a unanimous bankruptcy ruling whose most noteworthy feature may have been the justice who didn’t participate in the case: Samuel Alito.
Alito “took no part in the consideration or decision of the case,” according to a notation accompanying the ruling in Truck Insurance Exchange v. Kaiser Gypsum Company. His absence wasn’t a surprise; it’s been noted on the docket ever since the court took the case up in October. The justice (unnecessarily) didn’t explain why he sat this one out, but he has recused from previous cases involving companies in which he (unnecessarily) owns individual stock.
Whatever the reason Alito sat out Thursday’s case, there was a reason — according to his own judgment — that could have made his participation improper. So even if the outcome didn’t turn on his vote, his absence is meant to inspire greater confidence for both the parties to the litigation and the public at large.
That stands in great contrast to Alito’s refusal to recuse from forthcoming decisions involving Jan. 6 and the 2020 election, including the immunity ruling that didn’t come Thursday. (The court’s unhurried handling of that appeal may itself prevent Trump’s prosecution, no matter how the justices ultimately rule.)
Unlike the bankruptcy case, whose significance I don’t doubt, the question of whether Trump can be tried for his alleged election subversion is at least as momentous, and likely more contentious within the court. It’s fair to say that more of the public is watching that one and has reason to doubt Alito’s impartiality in the dispute, seeing as his flag story is unraveling by the day. That he has a hand not only in the case’s resolution but its equally important procedural movement (or lack thereof) is a stain on the case and the court itself.
Likewise, Justice Clarence Thomas recused himself from a petition involving John Eastman at the beginning of the term, in a dispute that overlaps in substance with the 2020 election, the results of which his wife had supported overturning. Thomas didn’t explain why he sat that one out, and unlike Alito, he didn’t attempt to explain why he feels it’s appropriate to participate in the forthcoming Trump and Jan. 6 decisions.
When it comes to both justices, that they appear to understand — and can act on — the propriety of recusal in other cases makes their failure to do so here even less excusable.
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