Bench Memos

Law & the Courts

Call for Alito and Kavanaugh Recusal Exposes Glaring Double Standard

Supreme Court Associate Justice Brett M. Kavanaugh in Washington, D.C., December 3, 2018. (Jabin Botsford/Pool via Reuters )

As Newsweek has reported, Aaron Belkin, the executive director of the liberal activist group Take Back the Court, sent a letter last week to Justices Alito and Kavanaugh demanding that they recuse themselves from the three pending Title VII cases before the Court. The reason: They met and posed for a picture with Brian S. Brown, the president of the National Organization for Marriage (NOM), an organization that has filed an amicus brief in those cases.

Belkin’s letter makes clear his organization’s belief that anything short of recusal would be unethical and asserts, “The credibility and impartiality of the current Supreme Court is in tatters. Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes.”

Since the letter confines its ire to those two justices, let’s consider whether Belkin himself is calling balls and strikes in reaching the conclusion that those two conservative justices must disqualify themselves.

First, some context: Brown did indeed meet the two justices. It was as part of a group that took a photo on October 29. Aside from the two justices and Brown, the photo included Cardinal Gerhard Ludwig Müller, Princess Gloria von Thurn und Taxis, and an unidentified priest. Brown posted the photo to his personal Twitter account on October 29 under the caption, “Great day at US Supreme Court #SCOTUS with #CardinalMueller, Princess Gloria #ThurnundTaxis with Justices #SamuelAlito and #BrettKavanaugh.”

The photo, and the only publicly known context for the meeting, appeared in a short article by Brown — not on the NOM website, but on the website of another organization of which Brown serves as president: the International Organization for the Family (IOF). So Brown wears more than one hat, and the article is primarily about Cardinal Müller. It begins by noting details about an event featuring the cardinal that IOF co-sponsored in Washington on October 25 and then discusses several days Brown spent with the cardinal at various meetings.

The article’s only reference to the justices (in contrast to the seven references in the article to Müller) is as follows:

This past week, I had the distinct honor of accompanying Cardinal Müller and Princess Gloria at a number of important meetings in Washington. Certainly a major highlight of our meetings was the opportunity to spend time with Supreme Court Justices Samuel Alito and Brett Kavanaugh.

While that description offers no content of any conversation between Brown and the justices, the overarching context suggests a church-themed visit by the two Catholic clergymen and Princess Gloria, a prominent supporter of the Church, accompanied by Brown. Belkin does not mention the IOF, identify the others in the photo, or acknowledge any aspect of this broader context. Neither has he (or anyone) intimated that the Title VII or any other cases came up in discussion.

Second, consider the level of inconsistency it requires to maintain that a meeting such as this one, likely fleeting and superficial, demands recusal, while maintaining at the same time that numerous protracted public appearances other justices have made at institutions and/or with individuals that were signatories of briefs before the Court do not require recusal. Consider the following recent examples involving the Court’s most liberal members:

  • The Regents of the University of California are the named party challenging the Trump administration’s wind down of the DACA policy in Dept. of Homeland Security v. Regents of the Univ. of California. Regardless, Justice Kagan spoke in a colloquy at UC-Berkeley with the law school’s dean, Erwin Chemerinsky, on September 23. On top of his school’s interest in the DACA litigation, Chemerinsky had submitted an amicus brief in another pending Supreme Court case, Mathena v. Malvo. On October 21, Justice Ginsburg inaugurated a lecture series at Berkeley Law School.
  • On October 9, Justice Kagan participated in a colloquy at a DC synagogue with Seth Waxman, who had filed an amicus brief in the same three Title VII cases as NOM.
  • On October 19, Justice Sotomayor was interviewed by Heather Gerken, the dean of Yale Law School, at a university alumni event on campus. Earlier that month, Yale University had submitted an amicus brief in the DACA case.
  • On October 21, Justice Kagan spoke at a colloquy with law professor Robert Stein at the University of Minnesota. In September, the Regents of the University of Minnesota had filed a cert petition, which is still pending, in a sovereign immunity case, Regents of the University of Minnesota v. LSI Corp.
  • On October 22, a week before the Alito and Kavanaugh meeting, Justice Kagan spoke at the law school of the University of Colorado, which had signed an amicus brief in the DACA case.
  • On October 30, the day after Brown met with Alito and Kavanaugh, Justice Ginsburg spoke at Georgetown Law School, in a lecture series bearing her name, on a panel with Bill and Hillary Clinton. Georgetown University had submitted another amicus brief (the one signed by Yale) in the DACA case.

These are just a few examples taken merely from the last seven weeks of justices involving themselves very publicly with events in which brief signers played a central role. Who knows what additional private conversations accompanied these appearances, or how many people attending such events whose organizations had signed amicus briefs posed for pictures with the justices?

Having just employed a glaring double standard, Take Back the Court faces two options if it wishes to retain an ounce of credibility. It can extend its recusal demands to Justices Ginsburg, Sotomayor, and Kagan in the above-referenced cases. Or it can take back its one-sided demand laughably confined to conservative justices.


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