Below is my column in the Hill on the possible conflict of interest faced by Judge Ketanji Brown Jackson if she is confirmed to replace Justice Stephen Breyer. If Judge Jackson becomes Justice Jackson, her service on a Harvard governing board will be a barrier to her sitting on one of the most significant cases of the term. While the Harvard Crimson quotes Professor Noah Feldman as saying that there is a “strong argument that she would not need to recuse,” I cannot see how she could ethically sit in judgment on the case given her board position.
Here is the column:
The first major decision of Judge Ketanji Brown Jackson after her Supreme Court nomination may be to recuse herself from one of the most significant cases before the court. Indeed, it seems she will have little practical or ethical choice but to say that she will not participate in a case that could fundamentally change the use of race in college admissions.
The college admissions cases before the court have been much discussed since President Biden announced that he would consider only black females for the next vacancy on the court. Some of us immediately noted that Biden’s exclusionary criteria have been declared unconstitutional or unlawful by the court for schools and businesses; they also are unprecedented, unnecessary, and unfair to potential nominees. To make matters even more awkward, the new justice would sit on two cases raising the use of race in admissions to Harvard and the University of North Carolina.
Judge Jackson’s nomination magnified the controversy in an unexpected way. It appears that she serves on Harvard’s board of overseers, one of the university’s two governing boards. Since the board plays “an integral role in the governance of the university,” the questions involved in the case before the court would appear to fall within the board’s broad discretion.
Even before Jackson’s nomination, conservatives called for any eventual nominee to recuse herself from the Harvard case due to Biden’s threshold criteria. Jackson now makes that recusal an imperative due to her board membership.
Jackson should recuse herself from the case. The use of “should” is not meant to suggest any real question of the ethical choice to be made; rather, it reflects the court’s curious position on ethics matters. Justices have long maintained that lower court judges cannot sit in judgment of their own conduct, but the ethical rules are treated as discretionary for each justice. Although James Madison stated in Federalist 10 that “No man is allowed to be a judge in his own cause,” Supreme Court jurists have long demanded precisely that unilateral power in judging their own ethics.
For a lower court judge, this would be a no brainer. Canon 2 of the Judicial Code of Conduct instructs judges to avoid even the appearance of conflicts or bias. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality as a judge is impaired.” Canon 3 states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That includes cases where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
This is more than the past controversy over the effective lock exercised by Harvard and Yale in graduates composing much of the court. The two schools have functioned as a virtual educational cartel, and Jackson will be only the latest such addition. (Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch are all Harvard graduates). Being an alumnus is unlikely to prompt recusals, but being a member of a governing board is far more significant than the common Crimson tie.
Jackson not only has an institutional interest as a Harvard board member but likely has personal knowledge of admissions standards or policies from her service on this board.
It would be profoundly inappropriate for a jurist to sit on a case for a school in which she has held a governing position and a role in setting institutional policies. This would be akin to a justice sitting on a case on oil leases for Exxon while being a member of the oil company’s board of directors.
For that reason, Jackson will be asked in her confirmation hearing to confirm whether she will recuse herself from the Harvard case. The question is whether she will feel compelled to recuse herself from the North Carolina case too, since both are being considered jointly by the court. Critics are likely to object that recusal from the Harvard case alone would allow her to participate in potentially framing (or opposing) a new standard affecting both schools.
This is not the first time a nominee has been confronted with a recusal demand in a confirmation hearing — but it is one of the most credible such questions.
During the confirmation of Justice Amy Coney Barrett, Senate Majority Leader Chuck Schumer (D-N.Y.) and other senators, without justification, called for the nominee to recuse herself from any election challenges. I opposed recusal demands of Justice Sonia Sotomayor over her comments in a past case (although Sotomayor recently raised new questions, after publicly calling for political action in favor of abortion rights). Valid recusal demands were made of Justice Elena Kagan, given her role in some cases before the court as U.S. solicitor general.
Others, like the late Justice Thurgood Marshall, had to make the same decision to remove themselves from such cases. In fact, sitting justices have regularly tripped such wires due to conduct on the court. The late Justice Ruth Bader Ginsburg regularly raised questions by making political public comments or references to matters expected to come before the court.
This case is different, however. While this is not a barrier to confirmation, Jackson should remove the issue before confirmation with a pledge of recusal.
Jackson’s expected confirmation will not materially change the court’s balance, but it could have an impact in these cases. It is not clear how far the majority may be willing to go in these cases. For decades, the court has left this issue a muddle of conflicting and vague 5-4 rulings. Much of the division is based on the use of diversity rationales after the court ruled in 1978, in Regents of the University of California v. Bakke, that “preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” Then-Justice Lewis Powell declared: “This the Constitution forbids.”
It did not, however, forbid the reliance on race as a factor for admissions, and it has struggled for decades with the weight given to that criteria. In 2003, in Grutter v. Bollinger, the court divided 5-4 on upholding admissions criteria used to achieve “diversity” in a class at Michigan Law School. In writing for the majority, then-Justice Sandra Day O’Connor stressed that she “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
The question is whether the time has arrived for the court to create a bright-line rule against the use of race in admissions or, alternatively, to further limit its use.
The loss of Justice Stephen Breyer — and the recusal of his replacement — would reduce the balance to six conservative and two liberal justices. That makes it less likely that the liberals would be able to secure a fractured plurality decision or a majority that preserves prior diversity rationales.
It would be a difficult concession for many liberals that Biden’s selection of a black female justice would actually reduce the votes determining the future use of race for admissions at colleges. Moreover, the first black female justice would not play a role in what could be the most consequential race-related case in decades.
Yet, it will be hard for liberals to argue that there is nothing wrong with her voting on the case. Solicitor General Elizabeth Prelogar recognized that she also had a conflict or appearance of a conflict in participating in the Harvard case; she taught a class at the university, and she was required to seek a waiver in light of that connection. There is a far greater expectation of recusal for a jurist who will be voting on the merits than an advocate whose administration already has aligned itself with Harvard’s position.
Much remains unknown about Jackson, who refused as an appellate nominee to answer questions about her judicial philosophy. Yet, before Judge Jackson establishes where she stands on judicial interpretation, she may have to establish where she stands on judicial ethics.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.