A Follow-Up on Whether Ketanji Brown Jackson Should Recuse Herself from the Harvard Affirmative Action Case

Ed Whelan says the answer is clear. I'm less certain, but Ed Whelan is not easily dismissed.

Above: Harvard Yard, Harvard University

Having written a newsletter on the topic of whether Ketanji Brown Jackson should recuse herself from the Harvard affirmative action case, I was very interested to see Ed Whelan weighing in on the topic. Since Ed sees the issue as very straightforward, while I do not, I thought I should take the time to address his arguments and respond to them.

If you are a paid subscriber, you have hopefully read my previous post on this topic. (If you’re not a paid subscriber, you can peruse it for free with a seven-day trial.) In it, I examine historical standards for recusal by Supreme Court justices, and conclude that a Justice Jackson would probably not recuse herself — at least based on what we know today. I noted that new evidence of the extent of her involvement in admissions policy may emerge at her confirmation hearings, but that we currently have no evidence of any direct involvement at present. Ed sees the matter quite differently, and I hope he won’t mind if I quote from him generously (although you should visit his post and should be reading him regularly in any event):

I’m having difficulty understanding why there is any doubt that Ketanji Brown Jackson, as a Supreme Court justice, would be required to recuse herself from taking part in the Court’s consideration of the challenge brought by Students for Fair Admissions to Harvard’s use of racial preferences in admissions.

Judge Jackson has been a member of Harvard’s Board of Overseers since 2016. As Harvard itself explains, its Board of Overseers is one of Harvard’s two “governing boards.” Together with the Harvard Corporation (also known as the President and Fellows of Harvard College), the Board of Overseers “help[s] to shape the University’s agenda, inquire into the quality and progress of its activities, and assure that Harvard remains true to its mission.” It “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives.”

As I did in my previous post, Ed quotes from the federal recusal statute, which requires a judge to recuse “in any proceeding in which his [or her] impartiality might reasonably be questioned.” Ed analogizes Judge Jackson’s position on the Board of Overseers to the position of a board member of the Coca-Cola corporation. Surely, Ed asks, a justice who was a former member of the Coca-Cola board of directors would be required to recuse from litigation against the Coca-Cola corporation? This would be true, he says, regardless of whether the board member had received financial compensation:

Set aside whether various perquisites accompany service on Harvard’s Board. What matters under the federal statute is that it is entirely reasonable to question the impartiality of someone who served on the board of an entity that is a party to a case that was pending during that person’s service.

One factor that intensifies the case for recusal (and that isn’t necessarily present in my Coke example) is that Students for Fair Admissions’ lawsuit, while filed before Jackson joined Harvard’s board, challenges policies and practices that have remained in effect during her tenure.

As a former Supreme Court clerk for Justice Scalia and an alum of both Harvard University 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.

First, let me acknowledge that I think to some extent, Ed and I are both operating in a bit of a factual vacuum — which, I reiterate, may be filled by evidence that comes to light at her confirmation hearings. My best insight into the role that the Board of Overseers fills is provided by the Harvard Crimson article that I quoted in my previous piece, which asserts that the Board of Overseers on which Judge Jackson has served “does not provide direct input on the school's admissions policies.” That may or may not be true. If she has provided such direct input — and we may learn that she has! — I think the case for her recusal is easy and straightforward.

The more interesting and difficult question is whether she should recuse if she denies having had any input into Harvard’s admissions policies whatsoever. In that example, we are talking about an issue of perception. But as I noted in my previous piece, that perception issue must be weighed against the policy, which justices have applied throughout the Court’s history, that recusal of Supreme Court justices is different. As Justice Scalia stated, in a quote I provided in my previous post and will repeat here:

Let me respond, at the outset, to Sierra Club’s suggestion that I should “resolve any doubts in favor of recusal.” That might be sound advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would proceed normally. On the Supreme Court, however, the consequence is different: The Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will find itself unable to resolve the significant legal issue presented by the case. Thus, as Justices stated in their 1993 Statement of Recusal Policy: “. . . Even one unnecessary recusal impairs the functioning of the Court.”

As for Ed’s example of the Coca-Cola corporation, I have my own hypothetical to offer: what if a justice had been a key member of the U.S. Sentencing Commission, and then had to decide whether to recuse from a case arguing that a central feature of the Guidelines was unconstitutional? That seems fairly analogous to Ed’s Coca-Cola example, and yet it is exactly the situation faced by Justice Breyer in the Blakely case, as I noted in my previous post. Justice Breyer did not recuse from that case, and indeed dissented from an opinion that his own Guidelines were constitutionally defective as they had been applied for years.

The Breyer situation seems pretty analogous to the current issue, and so do some other past refusals to recuse by other justices. For example, in the absence of any direct involvement by Judge Jackson in the formulation of admissions policies at Harvard, I am guessing that she will see her recusal decision as analogous to Justice Kagan’s refusal to recuse from the ObamaCare cases, despite Justice Kagan’s previous position as the Solicitor General, whose office had been charged with defending that law. Justice Kagan argued that she was walled off from discussions about ObamaCare, and that it was therefore proper for her to hear any ObamaCare-related cases.

I’m pretty sure I know how Ed would respond to these and other examples I provided in my previous post: these justices should have recused themselves in those cases. For example, Ed has argued that Kagan did not wall herself off from the defense of ObamaCare as completely as she had claimed; rather, she “minimized her participation in the Obamacare litigation in order to enhance her viability as a Supreme Court candidate.” And Ed seemed dubious about Justice Breyer’s refusal to recuse from the Sentencing Guidelines decision, writing in 2005: “In advice that other ethics gurus questioned, Gillers himself advised Justice Breyer last year that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.”

So in the end, Ed and I may be in agreement more than it might seem at first blush. After all, the issue of whether these justices should recuse is different from whether they will. My main point, in my piece from last week, is that a Justice Jackson probably won’t recuse herself, given the precedents. Whether she should is likely a much closer question. Like Justice Kagan, Judge Jackson may be tempted to minimize her role in decisions about admissions policies at Harvard. But if she had truly had no role, there is at least a reasonable policy argument that her recusal, as one justice out of nine, is a monumental step that would impair the Court’s functioning . . . if that recusal is not strictly necessary.

In the end, though, I continue to believe that the plaintiffs have a very strong case, for the reasons I gave in my previous newsletter. Although the admissions officials at Harvard may not have expressed their disdain of Asian applicants as crudely as those at UNC, the contention that they discriminate against Asian applicants seems to me to be supported by overwhelming evidence. I suspect that regardless of whether a Justice Jackson were to recuse herself, there may well be six votes to strike down Harvard’s policy.

As a postscript, I’ll note that I plan to send this link (and the link to my previous newsletter) to Ed. I don’t know if he’ll have time to review either — but given that I have taken a slightly different position than he is taking, I think it’s only fair that I bring it to his attention. If by any chance he provides me any feedback that he authorizes me to share, I’ll be sure to share it with you.