The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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."