Should Justice Barrett Recuse from 2020 Election Litigation?
This evening, within hours of the Senate’s party-line confirmation vote, Amy Coney Barrett was sworn in as the 103rd Associate Justice of the Supreme Court of the United States. While the Senate was preparing to vote, the Supreme Court issued yet another order in an election law case concerning state election rules. Like the Senate, the Court divided along ideological lines.
Now that Justice Barrett is on the Court, it is inevitable that she will be asked to participate in another election case. Litigation is ongoing, and more cases are likely to be filed between now and the election (and perhaps even after). Should she recuse from such cases? Here are my tentative thoughts on the matter (some of which I expressed here).
The relevant portion of the U.S. Code provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although this provision does not formally apply to Supreme Court justices, they have traditionally sought to comply with these rules, though erring on the side of not recusing. Unlike on lower courts, there is no one to replace a recused justice, so if one of the nine sits out a case, it is necessarily more difficult for the petitioning party to prevail. Another caveat is that each of the justices gets to make their own recusal decisions; they cannot be forced off of a case by their colleagues.
As traditionally understood, recusal is required when a judge has a financial interest in the case, is related to one of the parties, or has worked on the case prior to becoming a judge. So, for instance, Justice Alito has recused multipe times due to his financial holdings, Justice Sotomayor recused in American Electric Power v. Connecticut because the case was before the U.S. Court of Appeals for the Second Circuit while she was still a judge there, and Justice Elena Kagan recused from matters upon which she worked in the Solicitor General’s Office.
Recusal is also required when a judge has expressed an opinion on the merits of the case or otherwise demonstrated bias, such as by making extrajudicial comments about one of the parties. On the other hand, recusal is not required because of a judge’s prior rulings, statements about general legal matters or even relationships with government officials with matters before the Court in their official capacity.
Applying these standards, it would have been appropriate for J
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