More than 60 million votes have been cast and multiple election-related disputes are already making their way through the courts. Newly-confirmed Justice Amy Coney Barrett should recuse herself from these decisions.
Surprisingly, the Supreme Court is the only court in the nation—state or federal—that operates without a formal code of ethics. Although a federal statute requires that a justice must disqualify herself in any matter where “impartiality might reasonably be questioned,” little guidance exists about what circumstances fall under that phrase. And, in any event, whether or not an individual justice will recuse is subject to that justice’s unilateral choice, which no one can challenge.
And even when a justice does take that action, rarely is that choice explained. (A bill introduced into Congress earlier this year — the Twenty-First Century Courts Act — would make this process more transparent.)
Where to start and where to end?
Some speculate that Justices Neil Gorsuch and Brett Kavanaugh, also Trump appointees, should sit out the deliberations too. And if recusal is required for them, then Justices Sonia Sotomayor and Elena Kagan, as appointees of the Obama-Biden administration, arguably should abstain as well. Justice Clarence Thomas’s impartiality also has been questioned, given the animosity between Joe Biden and him over the scandal surrounding the confirmation hearings for Thomas, where Biden presided. This would leave Chief Justice John Roberts along with Justices Samuel Alito and Stephen Breyer to decide the election’s fate. It is unlikely that any of these justices would remove themselves, even though they would seal the fates of men who were directly involved in their appointments.
Barrett, however, faces a far different situation. President Trump demanded her immediate confirmation without delay precisely because he wants her to cast a vote when, as he predicts, a dispute about the presidential election arrives at the Supreme Court. Trump has stated unequivocally that he will contest the election if Biden prevails.
Barrett’s confirmation places her among the most-rushed since the mid-1970s at barely a month, second only to John Paul Stevens (19 days) and well under that of the other women sitting on the court (Sotomayor, 66 days; Kagan, 87 days) as well as Trump’s other appointments (Gorsuch, 65 days; Kavanaugh, 88 days). That expedited consideration would allow Barrett to hear arguments, set for Nov. 10, on Republican efforts to destroy the Affordable Care Act in the midst of a pandemic. The president’s views on that lawsuit could not be clearer: He forecast a “big WIN for the USA!” if the act were “terminated by the Supreme Court.”
It is reasonable to infer that, in Trump’s mind, Barrett must repay his appointment by refusing to recuse, and then by voting both to secure his election and to gut the ACA. And we know he will view these votes as the ultimate test of her loyalty. When then-Attorney General Jeff Sessions listened to ethicists and refused to participate in matters involving the presidential election campaign, Trump said: “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else.” His unrelenting and even posthumous attacks on Sen. John McCain’s vote against repeal of the ACA are legendary.
Yet Sessions recused under the same standard governing federal judges: because his “impartiality might reasonably be questioned.”
If there were ever a circumstance where impartiality might be reasonably questioned, Barrett’s confirmation will lay it out for all to see. She will have received a lifetime appointment to the Supreme Court in the midst of an election that the president expects to be resolved by her, in his favor.
Barrett’s mentor, Justice Antonin Scalia, once faced recusal involving his personal ties to Vice President Dick Cheney. The two had gone duck hunting, flying together on Air Force Two, suggesting to some that Scalia’s impartiality was in doubt. Scalia declined to recuse, writing that “friendship” is not a basis “for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.” But he acknowledged that “friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue.”
Trump may not be a close friend of Barrett’s, but his personal freedom is potentially at risk if Biden wins, when Trump would no longer be immunized from criminal prosecution.
Barrett may ignore calls for recusal. Or, like Sessions, she may agree that her impartiality could reasonably be questioned and face the withering attacks the president would likely inflict. The choice is simple: She must recuse, and welcome Trump’s scorn.