Constitutional Vanguard: A Follow-Up on Whether Ketanji Brown Jackson Should Recuse Herself from the Harvard Affirmative Action Case
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.
Thank you for these essays, Patterico. Always gets me thinking, and not reacting.Simon Jester (fc6a39) — 3/12/2022 @ 12:24 pm
Very thoughtful post again, Patterico.
I have no doubt that Judge Jackson has been vetted on this. By people who cursed Ruth Bader Ginsburg for dying while Trump was President. She would not be the nominee if they thought that she would not take the liberal side, or recuse herself, in this case.nk (1d9030) — 3/12/2022 @ 7:28 pm
I suppose hypothetically there could be a politically freighted case in which her vote would matter, but I doubt this one is it. So why would anyone care whether it’s 6-3 or 6-2?lurker (59504c) — 3/12/2022 @ 11:28 pm
The doxies. Orthodoxy cannot tolerate even a hint of heterodoxy.nk (1d9030) — 3/13/2022 @ 11:49 am
lurker (59504c) — 3/12/2022 @ 11:28 pm
It’s a precedent that might come in handy one day and become customary – and lawyers could slect plaintiffs with an eye toward Supreme Court recusal.
Justice Anthony Scalia once wrote an opinion discussing recusal in general (in the Dick Cheney case)
https://www.supremecourt.gov/opinions/03pdf/03-475scalia.pdfSammy Finkelman (46ec7d) — 3/13/2022 @ 1:07 pm
None of you are allowed to question or even think about it. She is a black woman. She must be confirmed on race and gender only. Welcome to the new America. Great job never Trumps you got what you wanted.Hatari Somewhere on Ventura Highway (cad170) — 3/14/2022 @ 11:14 pm
Yeah, we got racists like you kicked to the curb.Kevin M (38e250) — 3/15/2022 @ 12:02 am
Just the fact that race and gender were a necessary criterion for Biden doesn’t mean that she is worse than anyone else Biden might have chosen. In fact if anything her paper qualification were probably better than average.Sammy Finkelman (46ec7d) — 3/15/2022 @ 3:37 am
Update: She will.Kevin M (38e250) — 3/23/2022 @ 1:27 pm
KBJ declined to answer a question on what she thought was the definition of a woman.
She should have said: Under current precedent, that is the type of issue that is up to the states, and, according to the United States Constitution, Article IV, Section 1, each state must honor any document issued by any other state. Laws against discrimination cover discrimination on the basis of sex, which means it applies if someone is male, female, or something in between or neither.
It could still be a federal issue, as Congress might have meant something different from a state determination (and when they start doing adverse impact, it is a problem)
But that is an answer a conservative judicial nominee might have given.
Then you could ask: If discrimination on the basis of sex is illegal, how can you can you have different teams for men and women? There is an answer.Sammy Finkelman (c04aa1) — 3/24/2022 @ 6:49 am