Efforts to Destroy SCOTUS are Becoming More Foolish.

The Dishonest Campaign to Smear Originalists on the Supreme Court

The campaign to smear originalists on the Supreme Court has always been predicated on half-truths and innuendo. But Slate’s Mark Joseph Stern is now accusing Samuel Alito of “violating” completely imaginary SCOTUS ethic “rules” in a case involving Phillips 66.

According to Stern, even when originalist justices properly disclose all their investments and then recuse themselves, they’re still corrupt. Why?

The justice did not explain his reason for recusing, one of Roberts’ promised “practices.” To obtain that information, you must dig through his financial disclosures, which reveal that he holds up to $50,000 of stock in Phillips 66, one of the parties. Alito is one of two sitting justices who still holds individual stocks (as opposed to conflict-free assets like mutual funds).

First off, an explanation for recusal is not, in fact, one of “Roberts’ promised “practices.” The “Statement on Ethics Principles and Practices” plainly states that in “many instances, the grounds for recusal will be obvious,” but that justices “may provide a summary explanation of a recusal decision” or “may provide an extended explanation for any decision to recuse or not recuse.” There is no “rule.”

The above italics are mine. Because the word may, meaning “to express the possibility,” has a different definition than words like “will” or “must,” which denote an obligation or duty. So, for example, one may refer to a person who cynically delegitimizes constitutional governance for the sake of power as an “irredeemable authoritarian hack masquerading as a journalist,” but one is not required to do so.

The word “may” does not appear in a document drafted by Supreme Court justices by accident. As Roberts explains in the letter cited by Slate, compelling an explanation for every recusal “might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases.”

Indeed, Stern’s attack rests on the rickety notion that Alito is trying to conceal something from the public. When he claims, “you must dig through [Ailito’s] financial disclosures,” what he really means is opening the “Fix the Court” website (or just following the

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