In Defense of KBJ’s Harvard “Recusal”

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Last year, I attended then-Judge Jackson’s confirmation hearings. Most of the proceedings were utterly unmemorable. Perhaps the only important revelation came when Senator Ted Cruz of Texas asked if Jackson would recuse from Students for Fair Admission v. Harvard. “That is my plan, senator,” she said. Up to that point, the Harvard and UNC cases were consolidated. But after Jackson took the bench, the Supreme Court unconsolidated the Harvard case from the UNC case. Why? Presumably to allow Justice Jackson to at least participate in the UNC case. And to be clear the eight Justices decided to do so on their own motion. No party made this request. I think the Court was working on a general assumption that a full bench should be present where possible. On the lower courts, a panel could have just drawn another judge at random. But on the Supreme Court, there are no substitutes.

The two cases were argued separately in October. Argument in the UNC case stretched nearly three hours, with Justice Jackson participating. Argument in the Harvard case stretched another two hours, with Justice Jackson absent. At the time, I expected the Supreme Court to resolve the statutory issue in the Harvard case and the constitutional issue in the UNC case. Justice Jackson would be able to write something in the former case, but not the latter. Alas, that outcome was not meant to be.

The majority decided to resolve the statutory and constitutional issues in a single opinion. Gratz stated that admission policies that violate the Equal Protection Clause also violate Title VI. (Justice Gorsuch is almost certainly correct this statement from Gratz is in error.) And, Chief Justice Roberts observed, “no party asks us to reconsider” that statement from Gratz. Therefore, the Court would “evaluate Harvard’s admissions program under the standards of the Equal Protection Clause itself.” (This conclusion in Footnote 2 led to the jarring locution that Harvard violated the Fourteenth Amendment.)

Once the Court chose this path, there would no longer be two separate opinions. What was Justice Jackson to do? The very last page of the majority opinion states that Justice Jackson “took no part in the consideration or decision of the case in No. 20-1199″–that is, the Harvard case. Justice Sotomayor’s dissent included a similar footnote: “JUSTICE JACKSON did not participate in the consideration or decision of the case in No. 20–1199 and joins this opinion only as it applies to the case in No. 21–707″–that is, the UNC case. Justice Jackson’s separate dissent included the same footnote.

Ultimately, Justice Jackson’s eight colleagues all signed onto a statement that Justice Jackson “took no part in the consideration or decision of the case in No. 20-1199.” Can that statement possibly be true? To be sure, Justice Jackson did not participate in the Harvard oral argument. She almost certainly did not vote at conference in this case. And the separate opinion she wrote only referenced the facts at UNC and not at Harvard. But beyond those obvious points, the “recusal” become more complicated. In many places, Justice Jackson responded to the Chief Justices’s opinion concerning the Harvard case. I think it is a safe assumption that she reviewed the draft opinion in advance. Were those opinions redacted to remove any discussion of Harvard? Did she just skip over those pages? Were the memos circulated to the Jackson chambers likewise redacted? Does anyone believe these prophylactic steps actually happened?

On the lower courts, recusal means a judge has no contact with a case. Zero. She does not even see draft opinions that are being circulated. But on the Supreme Court, the practice apparently is different. The question turns on what “consideration or decision” means. Does that mean a Justice is hermetically sealed from a case? Or are the rules looser in a big case? I know it is en vogue to attack the Justices as ethically challenged, but here we have a clear case where a Justice said she would recuse, all nine Justices agreed she “took no part in the consideration or decision of the case,” yet she obviously had at least some involvement.

Richard Re expresses a similar skepticism:

These facts make it hard to deny that Jackson participated in the consideration of the Harvard case. Again, Jackson read a draft of the majority opinion in that case. She wrote an opinion criticizing the core reasoning of the majority’s draft. And the final version of the opinion for the Court in the case expressly responds to her objections. . .  . Yet the fact that Jackson did not write explicitly about Harvard shows, at most, that she did not participate in every aspect of the Harvard case’s “consideration.” Her dissent addressed only the case’s core legal issues, rather than factual points. But both recusal principles and Jackson’s disclaimer promise something more—namely, withdrawal from the entire case.

Richard goes one step further, and suggests that the Court had some sort of obligation to restructure the case so that Justice Jackson could fully participate, without any ruses:

The majority justices in particular should have arranged their work so as to maximize Justice Jackson’s valuable participation without jeopardizing or undermining her recusal. Their collective failure to do so has turned recusal into a farce.

Here, I’ll defend Justice Jackson–or more precisely, the principle that the Supreme Court needs to follow different recusal rules than the lower courts.

First, implicit in Richard’s comment is a premise: a bench of nine is extremely important–so important that the Justices unconsolidated the cases. This unusual step reflects how disruptive a short-handed bench can be in a high-profile case. But ultimately, the Court reconsolidated the cases, with Jackson still quasi-recused. Why is nine so important? Look no further than the period between Justice Scalia’s passing and Justice Gorsuch’s confirmation. In many of these disputes, the Court reached “compromises” that didn’t resolve pressing issues. Other cases were dumped 4-4.  Chief Justice Rehnquist addressed the value of nine when he declined to recuse in the Microsoft antitrust litigation. At the time, his son worked at one of a firm that represented the tech giant.

[B]y virtue of this Court’s position atop the federal judiciary, the impact of many of our decisions is often quite broad. The fact that our disposition of the pending Microsoft litigation could potentially affect Microsoft’s exposure to antitrust liability in other litigation does not, to my mind, significantly distinguish the present situation from other cases that this Court decides.  . . . . Finally, it is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here–unlike the situation in a District Court or a Court of Appeals–there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.

Second, and relatedly, critics want to increase the number of recusals on the Supreme Court. I think this number should be kept to a minimum. The obvious response is that Justices should not hear a case where there objectivity can be questioned. Does anyone honestly believe that Justice Jackson’s vote on this issue would be affected by her service on the Harvard Board of Overseers? The Justices have very strong views on legal questions. They are nominated in large part because of those views. Those priors probably weigh on their votes far more than any prior service at Harvard. If we take conflicts of interest seriously, a Justice’s deeply-held views on affirmative action should favor recusal far more than service on a board that had some tangential connection to the university’s affirmative action policies. But if that were the rule, few high-profile cases could even present a quorum.

Third, Justice Jackson presumably asked her colleagues for advice. Indeed, the other eight Justices would have to be personally familiar with the facts to state that Jackson took no part in the “consideration or decision.” Again, a Justice could have objected to this statement, but no one did. I think it prudent that the Justices can rely on the advice of their other colleagues. And this co-counseling should likewise extend to concerns about other facets of legal ethics–including acceptance of gifts and reporting requirements.

Fourth, it would have been extremely problematic for Justice Jackson to seek advice from some other authority–whether lower court judges or some other body. The mere fact of seeking advice would have necessarily breached confidence. It would be impossible to counsel Jackson unless she explained the specific dynamics of the Court’s private, internal deliberations. And we do not need to create the risk of more Supreme Court leaks.

With regard to Justice Jackson, the Supreme Court’s internal ethics protocols worked exactly they were designed. Still, I will patiently wait for complaints from FixTheCourt, a demand letter from Senator Whitehouse, and an expose from ProPublica.

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