In today’s Wall Street Journal, an article appeared discussing the decline of the raw aluminum smelting company Alcoa.[1] The name Alcoa harks back to the 1945 section 2 antitrust case, United States v. Aluminum Co. of America (Alcoa), which most famously stated that a single firm controlling 33% of the relevant market is not enough to constitute a monopoly.[2] However, the case intriguing for another reason, it is one of the only cases written by a circuit court that carries the force of Supreme Court precedent through Congressional passage of a special law.[3] Congress was forced to pass the law because too many Supreme Court Justices recused from themselves from the case that the Court lacked quorum.[4]  Today, it is unimaginable for the Court to forfeit judicial review of a major legal issue due to corporate connections and appearances of biases. Yet Alcoa still raises the question in a time where many Americans lack confidence in the Supreme Court,[5] would the Court gain ethical credibility by abdicating review in cases in which multiple justices have conflicts of interest?

The issue of Supreme Court recusals was a focus of national debate as the Affordable Care Act (ACA) made its way up the judicial ladder. Justice Kagan had been the former U.S. Solicitor General and may have been involved in ACA litigation in the lower courts.[6] In addition, Justice Thomas’ wife had been involved in political action committees that aimed to overturn the ACA.[7] While other federal judges are subject to the Code of Judicial Ethics, which requires recusals when there is an apparent conflict of interest, the Supreme Court is not bound by the Code. In response to the public outcry surrounding Justices Kagan and Thomas’ decisions not to recuse, Chief Justice John G. Roberts Jr. mounted a defense in his annual report on the state of the federal judiciary.[8] Justice Roberts outlined the reasons why the Supreme Court should be exempt from sections Code based on the Court’s unique function as the arbiter of last resort.[9]

Before digging into his perspective on recusals, Chief Justice Roberts argues that the Code of Judicial Ethics applies only to lower federal courts because they are created at the discretion of Congress, and the Code of Judicial Ethics was the product of Congress.[10] In contrast, Article III of the Constitution created the Supreme Court. Roberts then outlines his defense of discretionary recusals at the Supreme Court based on two reasons: No higher court exists to review Supreme Court recusals and Supreme Court Justices cannot freely substitute for one another.[11]

Alcoa is a counter-argument to Chief Justice Roberts because it demonstrates how the Supreme Court can retain its credibility as an apolitical institution without loosing its central purposes. The Supreme Court could possibly create a special certification for the Congressional Judiciary Committee to review judicial recusals. In addition, as in Alcoa, the Supreme Court could abdicate jurisdiction to a circuit court when the Chief Justice feels the Court may appear conflicted. While Alcoa was an extreme case in which the Court could not reach a quorum, the unpopular Court today should consider taking extreme measures to assure the public of its credibility.  Otherwise, like the company Alcoa’s stock price today, the Court’s ethical footprint will continue shrinking.

[1] John W. Miller, Alcoa’s Hometown Footprint Is Shrinking, WALL ST. J.  (Sept. 16, 2013 9:42 PM), available at

[2] 148 F.2d 416, 424 (2d Cir. 1945) (“[I]t is doubtful whether sixty or sixty-four percent would be enough [to constitute a monopoly]; and certainly thirty-three percent is not.”).

[3] See ANDREW I. GAVIL, WILLIAM E. KOVACIC & JONATHAN B. BAKER, ANTITRUST LAW IN PERSPECTIVE: CASES, CONCEPTS AND PROBLEMS IN COMPETITION POLICY, 599 (2d ed. 2002) (discussing the history of the Second Circuit’s review of Alcoa).

[4] Id.

[5] See Andrew Dugan, Americans’ Approval of Supreme Court Near All-Time Low, GALLUP POLITICS (July 19, 2013), (noting that political polarization on the Court since 2000 has contributed to Americans’ lack of confidence in the Court).

[6] Eric Segall, A Liberal’s Lament on Kagan and Health Care, SLATE (Dec. 8, 2011 4:07 PM), supreme_court_should_elena_kagan_recuse_herself_.html.

[7] Doug Mataconis, House Democrats Call on Justice Thomas to Recuse Himself From Healthcare Litigation, OUTSIDE THE BELTWAY (Feb. 9, 2011),

[8] Chief Justice John G. Roberts Jr., 2011 Year-End Report on the Federal Judiciary, available at

[9] Id. at 7.

[10] Id. at 4.

[11] Id. at 9.


Business and Marketing Editor, Diane Ghrist




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