This past week, I published an analysis of statute and precedent relating to the question of whether a Justice Ketanji Brown Jackson should be required to recuse herself from the Harvard affirmative action case. In the post, I concluded that recusal was unlikely, although the plaintiffs will likely win in any event.

Since the publication of that post, Ed Whelan wrote a piece that portrayed the recusal issue as simple and straightforward. Today’s newsletter responds to Whelan, addressing his arguments and analogies:

As a former Supreme Court clerk for Justice Scalia and an alum of both Harvard Univeristy and Harvard Law School, I’m quite sure Ed Whelan knows more than I do both about recusal standards, and about the governance of Harvard University. And yet, I’m not entirely convinced by his argument. I could see being persuaded that a Justice Jackson ought to recuse herself, due to the potential harm that her participation in the case could cause to the public perception of the judiciary’s independence. But I think there exist countervailing policy arguments— and my reading of the historical precedents suggests to me that her recusal is not likely, based on the facts as we currently understand them.

My previous analysis was available only to paid subscribers (although you can view it for free with a seven-day trial). Today’s piece is open to the public, so if you’re interested in the topic, you’ll be able to get at least a bare-bones analysis of the situation. If you’re interested in the full discussion of the precedents, subscribe here.

As I say in the piece, I have sent the link to Ed Whelan. He’s likely too busy to respond, but if he does (and gives me permission to repeat what he says) I will share that with you, both here and in the newsletter.