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It’s Barrett’s Call Which Cases She’d Sit Out: Recusal Explained (2)

Oct. 13, 2020, 8:01 AM; Updated: Oct. 13, 2020, 7:29 PM

Senate Democrats demand that Amy Coney Barrett recuse herself from the Obamacare fight and any potential general election legal disputes that could sway the outcome of the 2020 vote should she be confirmed to the Supreme Court.

High court recusals are rare, particularly in cases in which the justices have agreed to take up a dispute as is the case of the Affordable Care Act challenge they’ll hear in November soon after the election.

What follows is an explanation of the Supreme Court recusal process and how it might play out with Barrett.

What rules govern the justices on recusals?

The decision whether to recuse is up to each justice, Chief Justice John Roberts wrote in his 2011 year-end report. Unlike lower federal court judges, such a decision isn’t subject to review, Roberts said.

The Code of Conduct for federal judges doesn’t apply to the justices. But Roberts said that all of them “do in fact consult the Code of Conduct in assessing their ethical obligations.”

Even the federal statute requiring any “justice, judge, or magistrate judge of the United States” to recuse “in any proceeding in which his impartiality might reasonably be questioned,” doesn’t bind the justices, Roberts suggested.

The “limits of Congress’s power to require recusal have never been tested,” Roberts wrote, but added that the “Justices follow the same general principles respecting recusal as other federal judges.”

In 2019, the Supreme Court adopted a rule aimed at making it easier for the justices to identify conflicts. The rule requires counsel to identify “all proceedings in state and federal trial and appellate courts” that “are directly related to the case” in all petitions seeking Supreme Court review.

Has Barrett talked recusal?

During the second day of hearings, Sen. Patrick Leahy (D-Vt.) asked Barrett Tuesday whether she would commit to recuse herself from cases involving the 2020 election.

While Barrett said she would “fully and faithfully apply the law of recusal,” she said she couldn’t “offer a legal conclusion right now about the outcome of the decision I would reach.”

Barrett also referenced a description of recusal by the late Justice Ruth Bader Ginsburg that Supreme Court justices go through when making those decisions. Barrett said the process involves reading the statute, looking at precedent, and consulting with counsel. But Barrett said “the crucial last step” is a justice’s consultation with the full court.

“So I can’t offer an opinion on recusal without short-circuiting the entire process,” Barrett said.

Barrett was likely referring to a statement Ginsburg made in 2004 while facing pressure to step down from cases involving the liberal group, NOW Legal Defense and Education Fund. Ginsburg ultimately did not recuse.

Later in the hearing, Sen. Chris Coons (D-Del.) asked Barrett whether she would consider recusing from election-related disputes.

“I promise you that if I were confirmed and if an election dispute arises, both of which are ifs, that I would very seriously undertake that process and I would consider every relevant factor,” Barrett said.

She said she couldn’t provide an answer at the hearing but that she would take the process of deciding whether she should recuse “very seriously.”

On her Senate confirmation questionnaire, Barrett said she would recuse herself from matters involving her husband and sister, both of whom are practicing lawyers.

How often do justices recuse?

Out of the thousands of cases they were asked to review during the 2019 term, the nine justices recused 145 times, according to the watchdog group Fix the Court.

Most were in cases in which the justices refused to consider an appeal. Brett Kavanaugh, Elena Kagan, Sonia Sotomayor and Neil Gorsuch were the only members to recuse from merits cases, or those to be argued and decided. The court hears about 70 cases each term.

Most recusals are due to stock holdings or “prior work.” Kagan’s recusal was related to a matter she’d worked on while serving as Barack Obama’s solicitor general. Gorsuch’s was for a case that had been in the Denver-based U.S. Court of Appeals for the Tenth Circuit, where he sat for more than a decade. And the case involving Kavanaugh’s recusal was from the D.C. Circuit, where he sat.

Occasionally the justices recuse for other reasons, like close personal relationships. Justice Stephen Breyer frequently recuses from cases decided by his brother, Charles, who is a senior judge in federal trial court in San Francisco.

Sotomayor recused herself from an election dispute last term, Colorado Department of State v. Baca, after discovering that a friend was a party in the case.

Do they have a rationale for staying?

While the appearance of impropriety may persuade a lower court judge to withdraw, the concerns are different when it comes to the high court.

A standard resolving any doubts in favor of recusal might be a good rule of thumb for lower court judges, but not Supreme Court justices, the late Justice Antonin Scalia said in an unusual memorandum explaining why he refused to recuse in a case naming his friend Dick Cheney, who was vice president at the time.

Unlike lower court judges, justices can’t be replaced, risking an evenly split decision. Such a decision affirms the most recent lower court decision but isn’t binding anywhere else. That leaves the issue largely unresolved.

What do Democrats say about Barrett?

Barrett’s comments critical of the high court’s previous rulings on the Affordable Care Act make her ineligible to hear the latest ACA case, California v. Texas, which the justices are scheduled to hear Nov. 10, Senate Minority Leader Chuck Schumer (D-N.Y.) said Oct. 11.

Schumer cited a 2017 Barrett law review article in which she criticized Roberts and the court’s 2012 “illegitimate” decision to uphold the landmark legislation. In NFIB v. Sebelius, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote.

Democrats say Barrett should also recuse herself from any cases arising from the Nov. 3 election. They cite President Donald Trump’s suggestion that the Supreme Court will need a ninth member to avoid any evenly split decisions should the 2020 election come to the justices, like it did in 2000.

“Your participation, let me be very blunt, in any case involving Donald Trump’s election would immediately do explosive, enduring harm to the court’s legitimacy and to your own credibility,” Sen. Richard Blumenthal (D-Conn.) said Monday at the first day of Barrett’s Senate confirmation hearings. “You must recuse yourself.”

What has Trump said?

The president has called on Ginsburg and Sotomayor to recuse themselves in cases involving him. Ginsburg called Trump a “faker” when he was running for president in 2016 and Sotomayor’s rebuked the Trump administration for trying to skip over the lower courts and run directly to the Supreme Court.

“I just don’t know how they cannot recuse themselves for anything Trump or Trump related,” he said in February.

(Updates with Barrett's comments on recusing from election cases.)

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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