Affordable Care Act

Would Justice Barrett Be Required to Recuse in the Texas ACA Case?

Does participation in a moot court require recusal?

|The Volokh Conspiracy |

Earlier this fall, Judge Amy Coney Barrett participated in a moot court on the Texas ACA case at the William and Mary Institute of Bill of Rights Law's 2020 Supreme Court Preview. Could this require a Justice Barrett to recuse from the case if she is confirmed to the Supreme Court before the case is argued on November 10? It is an interesting question.

We normally expect a judge to recuse if the judge has expressed an opinion on the merits of a specific case before that case is heard. In this instance, the moot court did not merely concern the same question as is presented in the Texas ACA case, it considered the actual case, and the participants reviewed some of the actual briefs. On the other hand, participants were not asked to consider all of the filed briefs, nor were they presented with the oral arguments that will be made by the parties when the case is eventually heard.

While Judge Barrett's specific vote in the case has not been reported, we know that she did not vote in favor of the challengers' position. As reported by the Los Angeles Times, three of the justices in the moot court concluded the plaintiffs lacked standing, while five concluded that an unconstitutional mandate was completely severable from the rest of the law. From this we can infer that a Justice Barrett would not be inclined to invalidate any portions of the ACA beyond the mandate itself, if even that.

Other than cases in which there is a clear conflict, such as a justices financial holdings or prior participation in a given case, recusal is often triggered by a motion from one of the parties. Would one of the parties to the Texas ACA case file such a motion? I am not so sure. The plaintiffs cannot be happy to learn what Judge Barrett apparently thought of their case in the moot court. Yet at the same time, most observers believe the plaintiffs have little chance of success without the vote of a newly confirmed justice. Perhaps they believe they could still "prevail" on a 4-4 vote without a ninth justice, but such a resolution would simply send the case back down to the district court to reconsider the severability analysis, and would not represent a final victory in the litigation.

My colleague Cassandra Burke Robertson argues that some are too quick to call for judicial recusal, and that may well be the case here. Judge Barrett did not participate in the actual case below, and (if confirmed) she will be presented with a much fuller record, including more extensive oral arguments than she heard at the William & Mary virtual event.

In any event, if Judge Barrett is confirmed to the Court, it will be interesting to see whether any of the parties raises the moot court as a reason why she should recuse from this case. This question might also come up in her confirmation hearings.

The Supreme Court will hear oral argument in Texas v. California (combined with California v. Texas) on November 10. My prior posts on this case are indexed here.

UPDATE: The William & Mary Institute for Bill of Rights Law issued the following note on the event:

The Supreme Court Preview Moot Court is an educational role-playing exercise only and does not necessarily reflect the views of the participants. Every year this important message is conveyed at the beginning of the moot court. This year, Professor Allison Orr Larsen, said: "I want to remind everyone that our goal here is educational and we are role playing. You should not take the questions we ask or the arguments we make as personal endorsements."

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  1. The case has almost nothing to do with the ACA—the provision is in the Trump Tax Cut and not the ACA. So the provision is clearly unconstitutional and severable from the rest of the tax cut so Democrats will get $300 billion of Monopoly money to play with in a few months. That is 1/3 of the money necessary to pay reparations to descendants of American slaves.

    1. Make Joe Sixpack pay a surcharge for a racist handout.

      Can you say tumultuous?

      1. Trump has thrown billions at coal miners and farmers…and the steel company that decimated the American steel industry. So why aren’t you up in arms about all of that money Trump is apparently taking from you??

      2. Trump made Joe Sixpack pay the cost of his incoherent trade policy, to the tune of $1,000 per American household per a JP Morgan analysis. Of course, Trump was no more concerned about achieving practical goals from tariff policy than he was stopping North Korea’s nuclear program thru the Kim Jung Un talks.

        All he ever wanted was a headline, which is why Kim & Xi will occasionally throw him a PR bone. Hell, Trump couldn’t even keep his pretend objectives straight, which is a continual problem with our scatterbrain deeply-stupid president & his child’s-level attention span.

        Joe Sixpack paid the bill for that. Did you care, Ed?

  2. Conceptually, this would also require recusal of any justice who voted for an earlier decision that someone is asking to be overturned, since they have already issued a formal opinion on the issue. Like, say, Citizens United. It’s a silly ground for recusal in any event.

    1. No, because Citizens United is not be going to be tried again. It could be overturned sometime in the future but that would be a different case with different arguments.

      The parallel they’re going for is Justice Gorsuch recusing from the Murphy Oklahoma case a couple years ago because he’d ruled on it when he was with the 10th Circuit (he was then the deciding vote in the similar but different case McGurt case).

      They’re saying Coney Barrett should recuse from the upcoming ACA case because it is the same case with some of the same arguments, that she ‘ruled’ on in the college ‘Moot Court’ exercise.

      Don’t think it will fly, but they get points for creativity.

  3. I don’t think some green law students playing at being lawyers means has to recuse.

    1. I agree Bob! Can you imagine some hot shot Supreme Court advocate who bills his clients gazillion dollars an hour telling them he’s afraid he can’t do any better on the case than a bunch of law students, so he’s going to move to recuse Amy?

  4. Yeah, I’m not seeing a basis for recusal. Even if she wasn’t on a moot court panel she probably would have formed opinions on the case from reading about it. There’s also a good chance she at least skimmed the lower court opinions and she may have glanced at some of the briefs if she was feeling bored one day.

    1. It’s very sad that we can no longer make “briefs” jokes because of the #metoo movement.

    2. Yeah, this seems like straw-grasping if it comes up at all.

  5. From this we can infer that a Justice Barrett would not be inclined to invalidate any portions of the ACA beyond the mandate itself, if even that.

    No, I don’t think any inferences should be drawn, either way, for purposes of considering the merits of a recusal motion.

    You’re right that the lawyers for the litigants in the real case may attempt to read the tea leaves — but even that is fraught with peril! If we assume that Judge Barrett’s nomination is confirmed, and that in due course, she’s a sitting member of the SCOTUS that hears argument in, and decides, Texas v. California, will all the advocates simply give up and presume her vote is fixed, immutably and despite their best professional efforts, based on her inferred vote in a moot court?

    Moot courts are a teaching exercise for law students, or sometimes for lawyers earning continuing legal education credits, or both. The participants are pretending to be the lawyers arguing a real case, and the moot court judges, even if they’re real life judges, are pretending to be the judges of the moot court competition. The pretend-judges’ pretend-votes are for the sole purpose of adding realism to the teaching exercise.

    Giving them any weight at all for purposes of a motion to disqualify is a vast and unwarranted overestimation of their significance and importance as a predictor of real judges’ real votes on the real case after oral argument by the real lawyers actually representing the real litigants.

  6. In other words, Judge Barrett’s participation in this moot court could only raise a reasonable question about her impartiality among those who cannot distinguish fiction from reality.

  7. If Kagan didn’t then why should she?

    1. The Pope has already instructed her to support Obamacare and measures to reduce carbon emissions.

      1. That’s exactly why I didn’t want ACB to get the nomination.

        1. Why do I have the feeling that Cremmington was kidding and you weren’t.

  8. How likely is a Supreme Court decision in the ACA case to be issued by February, when a universal health care law seems destined to be enacted?

    1. Bernie lost…and it wasn’t even close. But guess what?? Medicare for All makes more sense at the state level so Vermont and Massachusetts can move ahead on getting rid of private health insurance whenever Bernie and Warren take the initiative to implement M4A in their respective states.

      1. The bill would originate in the House, of which Bernie is not a member. At the Senate level, he will have but one vote. He will not be in a position to decide whether to sign as president (or to veto the legislation).

        I see little to no reason for myopic focus on Sen. Sanders in this context.

        1. Ted Kennedy helped implement Romneycare in Massachusetts…so Warren could take the lead on implementing M4A at the state level.

          1. They’ll tell you M4A can only work if it’s country-wide.

            It’s pretty weird.

            1. Canada’s health care system is run at the province level. Private health care in America is currently at the state and county level.

              1. You want unrestricted profits to generate new treatments as fast as possible, just like you want unrestricted profits generating new computer chips every year, and iPhones, and video games. Even moreso for drugs since they are not fluff but save lives.

                Problem: Not everyone has insurance.
                Solution: Anything except government command and control of prices. That is murderous. Like Hitler and Stalin murderous, as the rate of new drugs slows.

                Please take your single payer crap and throw it onto the ash heap of history, along with gas chambers and concentration camps and starvation-by-warlordism.

                It is an idiotic, first order solution: presume that which exist is primary, and hand it out for free, be damed causing the producers to care much less about repeating the wonder creation because some braying ass wants to preen for power in front of the people.

                1. You need to show your work.

                  Because we have history to show that letting the market take over will kill vastly more people, despite your invocation of Stalin or Hitler(!)
                  That’d be like a Victorian Londan purge of the poor who get sick.

                  Markets are great, but not for necessities. Set the price for soda, not water.

                2. Hold those thoughts for next spring, when Congress is developing our single-payer program. If you have a good idea, call a legislator and share your insights. Stick with the Democratic legislators, though — the Republicans will be largely irrelevant during the debates and votes.

          2. Romneycare is an unmitigated disaster.

  9. If this was the type of moot court with which I am familiar — in which student advocates draw sides by lot, and judges “rule” for the advocates who were most persuasive, largely or entirely without regard to consideration of the way one would adjudge the issues on the merits — I do not understand any basis for a recusal call.

    If it was some other type of moot court — perhaps one designed to identify a substantive call on the merits, for some reason — maybe there could be something to an objection to a judge’s participation in a genuine appeal. Maybe.

    1. That’s a fair point, though we know it was the first type of moot court (advocacy competition), not the second (practice for actual argument).

  10. Question. If a justice thinks the parties lack standing but the court votes that they do have standing, does the justice vote as if they did have standing or does she stick to her vote conditional on her opinion on standing.

    In other words is standing a separate issue or do they have a single opinion conditional about their individual views on standing?

    1. Standing is a fundamental, threshold determination. If a judge is convinced that no litigant has standing, then that judge should dissent from any rendition of judgment other than dismissal. If there’s no case or controversy, that is a full stop; anything additional is an invalid advisory opinion.

      It would be unusual for a judge to dissent on grounds that the litigants lacked standing, but then say, “However, if I were to pretend that they did have standing, here’s how I’d vote.” This would be dicta, of course, of no precedential value on the merits issues. But the clerk’s office never tells judges, “You really should stop here, before you get to that opinion supposedly concurring in part and dissenting in part.”

    2. That is an interesting question. Suppose a nine-member court is split as follows:

      The court below found the plaintiff had standing and ruled in the plaintiff’s favor.

      Four justices would find standing and uphold, so the plaintiff wins.

      Four justices would find standing and reverse, so the defendant wins.

      The ninth justice would find no standing, but believes that if the plaintiff had standing, the plaintiff should win.

      If everyone votes like that, then the defendant wins 5-4.

      Perhaps the ninth justice would set aside her concerns over standing and give the plaintiff a 5-4 win.

  11. She would be required to recuse merely because the left would think that she ought to recuse. There are no more principles, just power. The only political test left is “what gives us the more powerful position?”

    1. There would be no Democratic power to influence recusal.

      The Democratic power will relegate her to writing a series of dissents, sometimes with the Court split 7-6.

      1. Until it becomes split 43-7…

  12. She’ll be in hospital by then — being hugged by our Tested Positive in Chief and so many other plague carrying idiotic Republicans — so the issue is moot.

  13. If moot courts are valuable tools for training prospective lawyers, it would seem to be a bad idea to dissuade anybody who thinks he or she might someday have a shot at a judicial nomination from serving on one.

  14. Considering how often the late Ruth Bader Ginsburg failed to recuse herself after opining on issues that were before the court, I don’t think this argument is made in good faith.

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