Demanding Kavanaugh Recusal in School Prayer Case Ignores History

US Supreme Court justices had lives before taking the bench. That should shock precisely zero Americans. It’s their background that shapes them as justices and should rarely be the reason for their recusal once on the bench.

Nonetheless, at least one commentator now insists Justice Brett Kavanaugh should recuse himself from the consideration of a pending petition before the court. The argument is a singular voice coming from a familiar critic of Catholic justices and who played his part in the campaign to label Kavanaugh “an extreme judicial nominee.”

A column in a popular magazine doesn’t carry as much weight with the court as a brief or petition, but we shouldn’t ignore outside voices trying to apply political pressure to the pursuit of justice.

This isn’t the standard the country has held its justices to—nor should it be. We should welcome justices who have grappled with understanding nuanced arguments on controversial issues and demonstrated the ability to shape an argument for a client.

My firm, First Liberty Institute, is representing Cambridge Christian School in Cambridge Christian v. FHSAA, which is simply asking the government to respect religious speech—including prayer over a loudspeaker—rather than treat it as a second-class right. The Constitution protects private, religious speech even when it occurs on government property.

Kavanaugh’s filing an amicus brief more than 25 years ago in a similar school prayer case before the court isn’t grounds for recusal, any more than Justices Thurgood Marshall’s or Ruth Bader Ginsburg’s experiences arguing at the Supreme Court before ascending to the bench should have disqualified them from hearing cases they were familiar with as advocates.

Prior to his nomination, Marshall led the NAACP Legal Defense and Education Fund’s efforts to secure the civil rights of millions of Americans and was a member of the board of directors of the American Civil Liberties Union. He argued numerous cases before the court he would later join, including the landmark decision Brown v. Board of Education.

Which of the 3,200 cases he would later hear on the Supreme Court should he have recused himself from because of his work with the NAACP and ACLU? None. His pre-judicial work as an advocate helped us understand who he was and how he would contribute to the court.

While not as prolific as Marshall’s 32 arguments before the Supreme Court, Ginsburg argued a half-dozen cases before ascending to the bench. Her work as a volunteer attorney for the ACLU is celebrated nationwide, having left a legacy as an advocate for gender equity, women’s rights, and paving the way for numerous advancements for access to abortion. Yet, she didn’t recuse herself in United States v. Virginia (gender equity), Ledbetter v. Goodyear (women’s rights), or Stenberg v. Carhart (abortion).

In each case, Americans understood who Justice Ruth Bader Ginsburg would be because of who attorney Ruth Bader Ginsburg was. And we are a better country for it. These examples further prove how their diversity contributed to the collegiality of the court, shaping future opinions and those of their colleagues on the court.

Ginsburg, in the context of free exercise cases, had a staunch dissent in Burwell v. Hobby Lobby and Trinity Lutheran v. Comer. But she joined a majority in Gonzales v. O Centro Espírita Beneficente União do Vegetal that didn’t include Justice Samuel Alito and Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of Stratton, in which Chief Justice William Rehnquist dissented. She also was famous for her friendly personal relationship with a colleague to her ideological right, Justice Antonin Scalia, who would often credit their conversations in helping him consider his own positions.

In Trans World Airlines v. Hardison, Marshall criticized the court’s pro-employer “de minimis” standard in Title VII cases. Alito, nearly half a century later, would echo Marshall’s dissent in Hardison in his majority opinion striking down the de minimis standard in Groff v. DeJoy.

We would be disserved by a monolithic court filled with citizens who hid from controversy and were never forced to wrestle with ideas and core concepts to shape an argument. That Kavanaugh—like Marshall and Ginsburg—thought carefully about issues implicated by such a case and crafted a careful argument before the Supreme Court should be viewed with appreciation, not cynicism.

The case is Cambridge Christian v. FHSAA, 11th Cir., 22-11222, rehearing denied 2/6/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jeremy Dys is senior counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. First Liberty represents Cambridge Christian School.

Write for Us: Author Guidelines