Affirmative Action Case Potentially Tricky for 9

High court watchers are looking at a host of entanglements that might force current and future members of the court to recuse themselves from a blockbuster case. 

Detail of drawing by Elliott Banfield, courtesy of the artist.
Illustration of the Supreme Court building. Detail of drawing by Elliott Banfield, courtesy of the artist.

The fate of affirmative action in higher education across America will be decided by the Supreme Court next fall, but will there be enough justices to hear the arguments? It’s an intriguing question to court watchers looking at a host of entanglements that might force current and future members of the court to recuse themselves from the blockbuster case. 

The prevalence of Crimson and Bulldog graduates among the black-robed justices has long been a topic of discussion among those who study the composition of the court and worry about a kind of blinkered liberal elitism. Only Justice Amy Coney Barrett went to law school outside of the Ivy League. Her degree is from Notre Dame.   

The affirmative action case known as Students for Fair Admissions v. Harvard poses a particular challenge to the court. Justice Clarence Thomas’s wife, who is involved in a number of conservative advocacy organizations, is on the board of the National Association of Scholars, which filed an amicus brief in support of Students For Fair Admissions. 

While some are citing this alignment as reason for Justice Thomas to step aside, a professor at Southern Texas University Law School, Joshua Blackman, tells the Sun that argument doesn’t hold water. The rule requires a justice to step aside “in any proceeding in which his impartiality might reasonably be questioned.” 

However, this standard still leaves plenty of wiggle room between being a party to a case and merely holding an opinion about one, even if that opinion makes its way to the court docket as an amicus brief. Neither the National Association of Scholars nor Virginia Thomas is a party to the case.

And there are many such briefs filed. According to a study by the National Law Journal, more than 8,000 amicus briefs were filed between 2010 and 2019, presenting a vast possibility for entanglements. Unlike lower court judges, if a justice recuses herself, she is not replaced — raising the possibility of a deadlocked court.  

The issue of the relationship between judicial spouses and the doling out of legal decisions is one that lives on both ends of the ideological spectrum. As the New Yorker magazine recently noted, the wife of the liberal stalwart and appellate judge Stephen Reinhardt held a senior position with the American Civil Liberties Union, which never prevented Reinhardt hearing cases involving the Union. Reinhardt died in 2018.

Even as Justice Thomas — who after Justice Breyer retires would be the longest serving member of the Supreme Court — faces calls to recuse himself, Judge Kentaji Brown Jackson, who is not even on the court yet, faces similar scrutiny. 

Judge Brown Jackson, whom reports have put on President Biden’s shortlist to fill Justice Breyer’s seat, is a graduate of both Harvard College and Harvard Law School, and currently sits on Harvard’s Board of Overseers, the university’s highest governing body. She began her term in 2016, and is set to conclude it this year.  

It is the last affiliation that might prove the most troublesome. While Judge Brown Jackson would likely step down before joining the high court, she would likely have to step aside if she played any role in formulating Harvard’s admissions policy during the four years of her tenure. The Board of Overseers was not mentioned in the district court decision that handed Harvard an initial victory in the litigation.  

While Mr. Blackman, the law professor, notes that what the Board of Overseers actually does is “a black box,” he speculated that Judge Brown Jackson might have voluntarily recused herself from admissions matters, keeping one eye on a possible Supreme Court nomination.

Should Judge Brown Jackson turn out to be Mr. Biden’s choice, it is likely that her Harvard connections would be an important vein for questions during her confirmation hearings. Were she to make it to the Supreme Court and have to recuse herself while Justice Thomas hears the case, the court’s liberal wing would find itself to be something like a rump.  

The New York Sun

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