As I set forth in detail back in February, Justice Ketanji Brown Jackson has an obligation to recuse herself from the pending case on racial preferences in Harvard admissions because she sat on the Harvard Board of Overseers not only during the events under challenge — which are ongoing — but also during the yearslong defense of the litigation, including at the Supreme Court. Justice Jackson agreed, and testified at her confirmation hearing that she would recuse. But Jackson’s recusal obligation should have extended as well to the consolidated case, for two reasons: because Harvard was engaged in a joint defense of the case with the University of North Carolina (the two cases were consolidated) and because a victory for UNC could redound to the benefit of Harvard in the event that the Court divided 4-4 or reached a fractured outcome in the Harvard case (granting that the two legal standards could end up differing):
The question goes to the heart of the university’s admissions, which the school has decided to defend all the way to the Supreme Court. The president of the university has sent out statements to the alumni about the case. The two cases are being heard in tandem because they involve almost identical issues (with the difference that UNC is a state school and thus subject to the 14th Amendment, which does not apply to Harvard as a private institution). Harvard and UNC will undoubtedly be presenting what amounts to a joint defense in how they brief and argue the case. As a result, there is a powerful argument that Jackson would have to recuse from the UNC case as well. . . .
Jackson herself has made recusal decisions before that would support this: “In 2016, Jackson recused herself from a case challenging the U.S. Department of Education’s sexual-assault guidelines for colleges and universities; in her Senate questionnaire for her D.C. Circuit confirmation hearing, she explained that at the time she was “serving on the board of a university that was evaluating its own potential response to those guidelines” and therefore her impartiality might be questioned. Jackson’s service on Harvard’s board raises the prospect that, if nominated and confirmed, she would also recuse herself from the challenge to Harvard’s race-conscious admissions policy .”
It was essential that Republican senators pin her down on this at the hearing. They did not. Ted Cruz, after getting Jackson to say she would recuse from the Harvard case, did not ask the follow-up question about the UNC case — an uncharacteristic lapse from the Senate judiciary committee’s best questioner, and one that irked me at the time precisely because it left open the possibility that Jackson might not recuse if the two cases were no longer consolidated:
Cruz moves on to more child porn cases. Really should have spent more time on Harvard, both to tie her to Harvard's deliberate race discrimination & to press her on recusal from UNC.
— Dan McLaughlin (@baseballcrank) March 23, 2022
Today, the Court ordered that the two cases are no longer consolidated and granted a separate hour of argument for each. The order notes, under the Harvard caption, “Justice Jackson took no part in the consideration of this order.” It makes no such notation as to the UNC case. Jackson is, apparently, back in the case. Republican senators should have known this before voting on her nomination. They got played.