Should Ketanji Brown Jackson Recuse in Harvard Admissions Case?
One of the most high profile cases on the Supreme Court’s docket for next term is Students for Fair Admissions v. President & Fellows of Harvard College, a challenge to Harvard University’s use of race in undergraduate admissions. The petitioners claim that Harvard is discriminating against Asian applicants and are asking the Court to hold that federal law prohibits any use of race in college admissions, while Harvard maintains its admissions practices are consistent with the Supreme Court’s decision in Grutter v. Bollinger, and that this precedent should be upheld.
Assuming Judge Ketanji Brown Jackson is confirmed to the Supreme Court this spring, one of her first decisions will be whether to recuse in this case. Since 2016, Judge Jackson has been a member of Harvard’s Board of Overseers, which (according to Harvard’s website) is “one of Harvard’s two governing boards” and “plays an integral role in the governance of the University” by fulfilling oversight and advisory functions. Judge Jackson’s term on the Board ends this year, but she has been a member throughout the pendency of this litigation.
A Washington Post story delves into the question whether this relationship means that a Justice Jackson should recuse from the Students for Fair Admissions case. As the article notes, the justices are not bound by the code of judicial conduct, but generally follow the same standard in determining whether to recuse from a case. The qualification “generally” is important here, as justices are somewhat less likely to recuse in cases than their lower court colleagues because, unlike on lower courts (and unlike some state supreme courts), there is no way to substitute for a recused justice. Thus, a recusal has the same practical effect as a vote against the petitioner.
From the Post article:
Jackson’s affiliation with Harvard is more current. She has served as a member of the oversight board, which provides “counsel to the University’s leadership on priorities, plans, and strategic initiatives,” since 2016. Herterm ends May 26; the courtwill hear the affirmative action challenges to policies at Harvard and the University of North Carolina in the term that begins in October.
Article from Reason.com