The Left was abuzz late last week with the news that Philip Alito, son of Justice Alito, was “detailed” (i.e., temporarily re-assigned) early last year from his position as an assistant United States Attorney in the Eastern District of Virginia to a position as an attorney-adviser in the Treasury Department’s office of general counsel. Ill-informed critics contend that Philip Alito’s position at Treasury means that Justice Alito should have recused from the tariffs case. Their contention is premised on section 455(a) of Title 28, which provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
This contention is baseless. There is no evidence that Philip Alito played any role in the tariffs case. A Treasury Department spokesman states that he “does not counsel on any matters reasonably expected before the Supreme Court.” The Supreme Court’s public information officer likewise reports her (and, presumably, Justice Alito’s) understanding that Philip Alito “has not worked on any matter related to the tariffs imposed by the federal government.” (Both quotes are contained in the first item linked above.)
More than thirty years ago, the seven justices of the Supreme Court (including Ruth Bader Ginsburg) who had spouses or children “who are or may become practicing attorneys” issued a joint statement addressing how section 455(a) applies. (John Roberts adopted the statement when he became chief justice in 2005.) In that statement, they set forth the recusal policy that they would adopt “when the covered lawyer [i.e., the spouse or child] has participated in the case at an earlier stage of the litigation, or when the covered lawyer is a partner in a law firm appearing before” the Court. They explained that they would not recuse themselves “by reason of a relative’s participation in earlier stages of the case” unless “some special factor” were present”:
One such special factor, perhaps the most common, would be the relative’s functioning as lead counsel below…. Another special factor, of course, would be the fact that the amount of the relative’s compensation could be substantially affected by the outcome here.
In other words, the justices concluded that even when a spouse or son or daughter “has participated in [a] case at an earlier stage of the litigation,” the justice’s impartiality in deciding that case could ordinarily not “reasonably be questioned.” Rather, “some special factor” would need to be present to trigger disqualification under section 455(a).
Having not participated at all in the tariffs case, Philip Alito is far beyond the most remote reach of any disqualification that section 455(a) could impose on Justice Alito.