WASHINGTON — It’s likely the reason that Supreme Court did not vacate the FCC’s 2015 Open Internet order at the same time it denied internet service providers’ appeal was that two conservative justices recused themselves: Chief Justice John Roberts and new Associate Justice Brett Kavanaugh.
The three other Republican appointees would have vacated the 2015 order.
Not vacating the order means it can be used by net neutrality groups challenging the Federal Communications Commission Republicans’ deregulatory Restoring Internet Freedom Order (RIF).
Justices don’t have to explain their recusals. But Kavanaugh was a judge on the U.S. Court of Appeals for the D.C. Circuit who participated in the en banc decision on whether to review the panel decision to uphold 2015 order. He dissented from the decision not to hear the appeal. This was before the 2015 order was mooted by the new FCC order.
Roberts’s 2017 financial disclosure statement included stock in Charter Communications and Time Warner, which would have become AT&T stock after the merger if Roberts still held it, which court transparency group Fix the Court says was the case. That would almost certainly explain his recusal, though Fix the Court said Roberts participated in the June decision to deny cert in the case of AT&T Mobility’s advertised service plans, four days after the AT&T-Time Warner deal closed, so theoretically Roberts should have recused himself. That was likely an oversight, as last term Roberts recused himself from two Time Warner-related cases.
If Roberts continues to own the stock, that could take him out of play if the Justice Department’s appeal of the AT&T-Time Warner merger gets that far. Currently it is before the D.C. Circuit, which last week picked the three-judge panel that will hear the appeal Dec. 6.