Justice Alito Well Within His Rights to Sell Cratering Bud Light Stock, Legal-Ethics Experts Say

Welcome back to Forgotten Fact Checks, a weekly column produced by National Review’s News Desk. This week, we look at the latest misleading allegations of ethical impropriety against a conservative justice and cover more media misses.

Liberal Media Try to Stir Up Another SCOTUS Ethics Scandal
Another day, another failed attempt at smearing a conservative justice. This time, the hit pieces are coming for Justice Samuel Alito, who reportedly sold off between $1,000 and $15,000 of Anheuser-Busch InBev stock last summer as prices tanked in response to boycotts against Bud Light over its partnership with trans influencer Dylan Mulvaney.

Alito then purchased Molson Coors stock on the same day — August 14, 2023.

The not-so-salacious story, first reported by the Law Dork blog, was picked up by the New Republic and the Daily Beast. Politico Playbook gave the story prominent billing.

Chris Geidner, the self-proclaimed “Law Dork” and former Buzzfeed News legal editor, writes:

Participating in a boycott is undeniably a political statement. And there are pending cases for which participation in an anti-trans beer boycott could be seen as his having a finger on the scale of justice on the side of the anti-trans advocates supporting — and in some cases, defending — these laws such that recusal could be required.  Under federal law, Alito is directed to recuse himself from cases in which his “impartiality might reasonably be questioned.“ Another provision directs recusal where a judge “has a personal bias or prejudice concerning a party” in a case.

He goes on to argue that if Alito had only sold the Anheuser-Busch stock, “one might be open to the possibility that he just decided to get rid of a stock that he saw having a rough time. But, the fact that he also purchased Molson Coors stock in the same price range on the same date, in addition to all of the outside activity, makes it significantly more likely that it was a boycott-related action.”

But every legal-ethics expert National Review spoke to said they don’t see an issue here.

“Absent more, this is a non-story,” said Hofstra Law professor James Sample.

Bradley Wendel, Edwin H. Woodruff Professor of Law at Cornell Law School, told NR that Canon 5 of the Supreme Court’s Code of Conduct seems to limit the idea of “political activity” to partisan or electoral political activities — as opposed to activities related to contested social issues such as the Bud Light boycott. Meanwhile, Canon 4 “explicitly allows Justices to speak or write about law-related and nonlegal subjects.”

“If Justice Alito wanted to give a speech about woke corporations, this would fall within the permission of Canon 4, not the prohibition in Canon 5,” he explains.

“There has long been a norm that Supreme Court Justices don’t talk about contested political, social, or ideological issues, but there has also always been a counter-norm of some Justices speaking out on issues of public importance,” Wendel added. “Justice Scalia gave many public statements about the importance of his Catholic faith, for example. On the other side, Justice Ginsburg had to apologize for comments she made about then-candidate Donald Trump.” And in this case, he notes, “we don’t even have an overt effort to communicate on matters of public concern.”

Alito may have sold the stock because he was angry at Anheuser-Busch, which would be perfectly fine, says Wendel. Or he may have sold the stock because the boycott was hurting the stock price — which would also be fine. “If Justice Alito had made a big public show of selling his A-B stock, that would be one thing, but we actually don’t know anything about his motives for doing so,” he said.

The Bud Light controversy began when the brand launched a minor creative collaboration with Mulvaney, who posted an Instagram video surrounded by the iconic blue cans in a bathtub. The post caused a backlash among the brand’s blue-collar base. The fallout became so widespread that Modelo dethroned Bud Light from its spot as America’s most popular beer and led HSBC to downgrade Anheuser-Busch stock.

Even law ethics experts who have voiced concern about past allegations of ethical impropriety against Alito say they’re unbothered by this nonstory. Charles Geyh, a professor at Indiana University Bloomington Maurer School of Law, said that Alito is under an ethical obligation to “act at all times” in a manner that “promotes public confidence” in the “impartiality” of the Court. “Measured against that yardstick, there is nothing problematic about a justice selling his stock in a company because it is losing its share value. And there is nothing wrong with a justice selling stock in a company that is doing things he regards as ill-advised.”

“If he made a speech in which he disparaged trans people or opined that such people were undeserving of equal rights, we’d be having a different conversation,” Gehy said. “But to draw negative inferences about the justice’s impartiality from the mere fact that he sold stock in a company when it was under fire is too attenuated a connection to warrant concern.”

He concluded: “I have been critical of Justice Alito’s conduct on occasions in the past (most recently, with respect to allegations that he flew a flag in protest of the presidential election), but this one does not give me heartburn.”

Geyh is referring to a recent New York Times article, “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.” NR’s Dan McLaughlin says the allegations, which concern a flag that Alito’s wife allegedly flew at their home 3.5 years ago, are “flimsy and misleading.” Alito told the Times that he had “no involvement whatsoever in the flying of the flag” and that it was “briefly placed by Mrs. Alito in response to a neighbor’s use of objectionable and personally insulting language on yard signs.”

Back on the topic of the Anheuser-Busch stock, Boston University School of Law professor emerita Susan P. Koniak drew a conclusion similar to that of our other legal experts. “I do not see the sale of this stock some months into the boycott nor the buying of Coors stock later as a problem in and of itself,” she said.

“Do I believe he sold it because of the Bud Light dispute? Yes, but that judgment is influenced by my overall knowledge of who he is and how he operates, which is not itself proof of anything,” she told NR. “Absent the possession of inside information, which does not seem to be the issue here, to demand of judges that they have a plausible nonpolitical reason for selling stock strikes me as a bridge too far.”

And, as former NR writer David Harsanyi noted on X, while media outlets on the story report Alito sold his stock at the “height” of the boycott, the backlash began in April. In fact, by mid August the stock had finally stopped sliding.

Headline Fail of the Week
Politico made clear who it is rooting for in the Maryland race for U.S. Senate this cycle with this controversial headline: “Larry Hogan is standing between Angela Alsobrooks and history.”

Backlash seemingly led the outlet to alter the headline to read, “Angela Alsobrooks won a messy Senate primary. Now she takes on Larry Hogan.” When asked about the change, Politico communications director Melissa Cooke told Fox News that “headlines are regularly A/B tested and switched on a rotation, based on a number of factors, including engagement.” Cooke added that no editor’s note has been appended to the article, since both headlines “accurately reflect the piece itself.”

“It was a stunning victory, and Alsobrooks is now one step closer to becoming Maryland’s first Black senator and taking a seat in a chamber in which only three Black women have ever served,” the article read.

Media Misses

• The hosts of The View are apparently appalled by Kansas City Chiefs kicker Harrison Butker’s Catholic faith. During a discussion of his recent commencement speech at a Catholic college in Kansas, he discussed his faith and spoke favorably about women who are homemakers. He also spoke critically of the LGBT community.

“If you’re using this to oppress people or hold them down, you’re not walking with Jesus,” co-host Sara Haines said. “What this man is doing is not just a devout Catholic,” she said. “This is someone who is practicing something called the Traditional Latin Mass, which is divergent from the majority of Catholics. It’s compared to being cult-like and extremist like some religions in the Middle East and Asia.”

“So this is a very extreme religion,” she added.

Co-host Joy Behar, meanwhile, suggested Butker has “mother issues” and should “get a therapist.”

• Let the LGBT “Pride Month” madness begin. NBCUniversal is set to release a new animal series called “Queer Planet” on June 6. “Take a worldwide journey exploring the rich diversity of animal sexuality — from flamboyant flamingos to pansexual primates, sex-changing clownfish, multi-gendered mushrooms and everything in between. This documentary looks at extraordinary creatures, witnesses amazing behaviors, and introduces the scientists who are questioning the traditional concept of what’s natural when it comes to sex and gender,” the show’s description reads.

• Vice President Kamala Harris raised eyebrows last week with her comments on Democrats’ so-called efforts to fight inflation: “Because of the Inflation Reduction Act, . . . we are dropping trillions of dollars on streets of America right now.”