Bench Memos

Law & the Courts

On Justice Barrett’s Prospective Participation in Election Cases

Justice Amy Coney Barrett will soon decide whether to take part in election-related litigation. In this Volokh Conspiracy post, Jonathan Adler offers his “tentative conclusion” that Justice Barrett “has no obligation to recuse, and that her colleagues would agree based upon past practice.” “But,” he says, “I think it’s a close call, largely due to the President’s own intemperate and inappropriate behavior combined with the unusual timing of Justice Barrett’s confirmation.”

For further context on this question and how Barrett’s Supreme Court colleagues might view it, I would highlight two recent instances (or sets of instances) of non-recusal:

1. Justice Kagan declined to recuse herself from the first Obamacare case (NFIB v. Sebelius) even though, as President Obama’s Solicitor General, she was personally involved (even if only to a limited degree) in advising how to defend against challenges to Obamacare. Among other things:

– In January 2010, Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.”

– In March 2010, Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.”

– Katyal and Kagan then consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.”

In a June 15, 2010, e-mail to Kagan—one month after Obama nominated her to the Supreme Court—Katyal informed her, in connection with “a big story coming out shortly about whether you are recused in health care litigation,” that he had told Attorney General Holder that Kagan has “been walled off from Day One.” But what Katyal told Holder was clearly not accurate. That line instead appears to have been developed post hoc in order to salvage Kagan’s participation in the Obamacare litigation.

(See these links for a more detailed discussion and documentation.)

Under 28 U.S.C. § 455(b)(3), a justice has a legal duty to recuse herself from a proceeding in which the justice “has served in government employment and in such capacity participated as counsel [or] adviser … concerning the proceeding.”

I’ll note that some folks on the Left, including law professor Eric Segall and Gabe Roth of Fix the Court, also argued that Kagan was obligated to recuse from NFIB v. Sebelius.

2. As Jonathan discussed at the time, Justice Ginsburg took part in a ruling involving the 2016 presidential campaign even though, in the very midst of that campaign, she had made public comments condemning Donald Trump as a “faker” and saying that she “can’t imagine what the country would be with Donald Trump as our president.”

In those same comments, she wondered, “How has he [Donald Trump] gotten away with not turning over his tax returns?” Yet she took part last term in two cases involving whether Trump could be forced to turn over his tax returns (and other financial records).

The argument that Justice Kagan and Justice Ginsburg were obligated to recuse in these instances strikes me as far stronger than the argument that Justice Barrett is obligated to recuse from election-related cases. Among other things, as Jonathan points out, “there is no precedent for judges or justices recusing [merely] because a case implicates the interests of the President who nominated them.” Once a justice has been appointed, the guarantee of life tenure ensures that the justice has no continuing debt to the appointing president.

(I’ve already explained why I disagree with former judge Michael Luttig’s argument that the Supreme Court’s 2009 ruling in Caperton v. A.T. Massey Coal Co. has any meaningful bearing on Barrett’s recusal decision.)

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