The Supreme Court’s decision in Students for Fair Admissions v. Harvard will be remembered as a major decision striking at affirmative action in higher education, but the case’s footnotes tell an additional story—about the hollowness of the justices’ recusal practices.
Justice Ketanji Brown Jackson recused from the Harvard case because of her past service on that university’s Board of Overseers. Yet the first page of her dissenting opinion is prominently captioned with the Harvard dispute’s full name and case number. Citations to the Harvard case also appear at the top of every subsequent page of Jackson’s opinion.
Chief Justice John Roberts’s opinion for the Court tells a similar story. Like Jackson, Roberts leads off with a caption identifying the Harvard case. And Roberts includes several footnotes and passages that spar with Jackson, reciting her arguments and offering counterpoints. So anyone who read drafts of the Harvard decision had to encounter Jackson’s criticisms.
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.
But not so fast! The Court resolved two related disputes in a single opinion—one involving Harvard and another involving the University of North Carolina. And the various opinions state, in brief notes, that Jackson “took no part in,” or “did not participate in,” the “consideration or decision of” the Harvard case. Instead, Jackson dissented only as to the UNC dispute. Jackson’s opinion also avoids talking explicitly about Harvard, instead focusing on UNC.
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.
Imagine that a justice withdraws from a case but nonetheless asks to read the legal discussion in the draft opinion for the Court, explaining that she has developed some relevant ideas that the other justices should probably consider and respond to. Wouldn’t that justice be asking to “participate in the consideration” of the case?
Of course! The supposedly recused justice would be asking to consider arguments put forward in the case and to generate new arguments in that case for others to consider. The point is only made more powerful if the justice’s request were granted, leading to new consideration by the majority justices and, ultimately, revisions to their opinion.
Perhaps the imagined justice wouldn’t be participating in the “decision” of the case, since she wouldn’t be casting any votes in the matter. (Even that is questionable, though, since the justice’s objections in the case might affect the votes of others.) But surely a judge who engages interactively on the merits of a case is “participating” in its “consideration.”
The presence of the UNC case doesn’t change that result. Jackson’s ability to participate in one case cannot override a recusal duty to stay out of another one. Yes, Jackson participated in the UNC case’s entire consideration and resolution. But, in doing so, she also participated in a critical part of the Court’s consideration of the Harvard case.
Normally, the Court deals with similar recusal problems by issuing a full opinion only in the case for which there is no recusal. Having settled the key legal questions there, the Court can summarily dispose of the other dispute. This approach results in a pair of opinions, with justices participating where they can.
Here, for instance, the Court could have made the UNC case the centerpiece. The main opinions would be directed at UNC and equal protection, with all justices participating. A short, separate decision might then have issued in the Harvard case, applying principles from the UNC ruling and explaining their relationship to Title VI. Jackson could then have been walled off from both consideration and decision in the Harvard case.
Why didn’t the majority justices take those steps yesterday? Perhaps they simply wanted to focus on the Harvard case due to its distinctive facts or did not want to issue two duplicative or incomplete opinions. But those explanations worryingly suggest that convenience alone can justify bending recusal obligations or issuing misleading disclaimers.
Issuing two separate opinions may also have seemed to the majority like a needless formalism. But the recusal obligation itself is formal. Is it needless, too? At any rate, the justices should not issue disclaimers that assert one state of affairs while seemingly proving another one. Alas, not only Justice Jackson but also the Court itself (and Justice Sotomayor) did so yesterday.
As I hope I have made clear, the problem here is not just with Justice Jackson but also with the rest of the Court. 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.
The Harvard case could be viewed as the latest example of how the justices circumvent or dilute their ethical obligations. Nobody is supposed to be a judge in her own case, yet the justices are usually left to make their own decisions about recusal. The predictable result is that the justices judge themselves leniently, leading critics to cry foul.
And so recusal practices at the Supreme Court are almost entirely hollow. The Harvard case is just another illustration of their formality and general ineffectiveness.
Re’s Judicata 