Justice Samuel Alito sat out three separate decisions the Supreme Court announced in its Monday order list, continuing a pattern of recusals that has quietly removed one of the court's most consequential conservative voices from dozens of cases over the past several years.
The court did not explain why Alito did not participate. It rarely does. But the three cases, two involving Johnson & Johnson and a third involving a veteran's motion, mark the latest in a string of withdrawals that, Newsweek reported, have raised questions about how financial holdings shape the work of the nation's highest court.
The court ultimately declined to hear both Johnson & Johnson cases: Johnson & Johnson Consumer Inc. v. Noohi, Narguess and Johnson & Johnson, et al. v. San Diego City Employees, et al. It also denied a motion for leave to proceed as a veteran in March, Anthony W. v. United States. Justice Brett Kavanaugh likewise did not participate in one of the two Johnson & Johnson matters.
The court's Code of Conduct calls for justices to recuse themselves when they have financial, professional, or personal conflicts. Unlike lower-court judges, Supreme Court justices decide for themselves whether a conflict exists. No outside body reviews their judgment.
Bloomberg reported in 2024 that Alito or his wife owns stock in multiple companies, including a subsidiary of Johnson & Johnson. That financial interest appears to be the likeliest explanation for Monday's absences, though the court offered no formal reason. Bloomberg's reporting also found that Alito had recused himself from 64 cases between 2021 and 2024 because of stock ownership in companies connected to the litigation.
Sixty-four cases over three years is a significant number. It means one of the six conservative justices on a nine-member court has repeatedly removed himself from matters where his vote could have tipped the balance, not because of ideology or politics, but because of a brokerage account.
Alito's most recent health scare, he was hospitalized after a medical episode at a Philadelphia dinner, has already drawn attention to his continued capacity to serve. Repeated recusals add a different dimension to the same concern: even when Alito is present, his financial entanglements sometimes prevent him from doing the job.
Monday's order list was not the only instance. Just days earlier, on Friday, Alito sat out a separate decision in Chevron USA Inc. v. Plaquemines Parish, Louisiana. In that case, he had recused himself back in January after disclosing a financial interest in ConocoPhillips, the parent company of Burlington Resources, a party to the case at the lower-court level.
That recusal at least came with a stated reason. The three Monday withdrawals did not. The gap between the two situations illustrates a broader transparency problem: the court sometimes explains and sometimes doesn't, and no one outside the building can compel an answer.
The court's internal procedures have drawn scrutiny before, particularly around how its order list and so-called shadow docket operate with minimal public explanation. Recusal decisions fit the same mold, consequential choices made behind closed doors, with little accountability.
The court announced in February that it had adopted revised rules requiring parties in cases to submit stock ticker symbols, if applicable. A press release said the changes were designed to support newly developed software that will assist in identifying potential conflicts for the justices.
The software will compare information about parties and attorneys with lists created by each justice's chambers. The court added that the new tool will supplement, not replace, existing conflict-checking procedures.
On paper, that sounds like progress. In practice, the system still rests on the same foundation: each justice polices himself. No independent ethics office reviews the lists. No inspector general audits the software's outputs. The revised rules formalize a process, but they do not change who holds the final say.
Alito's record on the bench, including his forceful textualist approach in recent birthright citizenship arguments, makes every missed case a loss for the conservative legal project. When a justice of his caliber steps aside because of stock in a pharmaceutical company, the court's conservative majority effectively shrinks to five. In close cases, that margin matters.
The current Supreme Court term is expected to run through June. How many more cases Alito will sit out before then is anyone's guess. His 64 recusals over the 2021, 2024 period suggest the problem is structural, not occasional. The holdings that trigger conflicts are apparently still in the portfolio.
Alito has spoken publicly about judicial philosophy and the legacy of Justice Scalia, making clear he sees the court's work as deeply consequential. Few would disagree. That is precisely why repeated absences, for financial reasons that could be resolved by selling a few stocks, deserve more scrutiny than they have received.
The court currently consists of six conservative justices, Chief Justice John Roberts, Clarence Thomas, Alito, Neil Gorsuch, Kavanaugh, and Amy Coney Barrett, and three liberal justices: Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. Every recusal by a conservative justice narrows the majority and changes the math on cases that shape the country.
Democrats and progressive groups have spent years demanding an enforceable ethics code for the Supreme Court. Conservatives have rightly pushed back against proposals that would give Congress or outside panels leverage over an independent branch of government. But the strongest argument against external oversight is a court that manages its own house well. Sixty-four recusals in three years, and counting, does not make that case.
A justice who wants to defend the court's independence might start by clearing the conflicts that keep pulling him off the bench.
