Should Justice Barrett Recuse from 2020 Election Litigation? (Updated)

There's no precedent for a recusal, but there's also no precedent for the current situation.

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 Justice Ruth Bader Ginsburg to recuse in a 2016 election case involving Trump, due to her comments expressing her desire that Trump lose, but she had no cause to recuse in cases challenging Trump Administration policies just because she said bad things about Trump the person. Likewise, Justice Scalia may have been required to recuse in a case against Dick Cheney, the person, but he had no obligation to recuse in the case against the Vice President's energy task force (as he explained here).

As odd as it may seem to some, federal judges are under no obligation to recuse in cases involving a prior benefactor, and there is no precedent for judges or justices recusing because a case implicates the interests of the President who nominated them. Justices Gorsuch and Kavanaugh did not recuse in Trump v. Vance and Trump v. Mazars, and Justices Ginsburg and Breyer did not recuse in Clinton v. Jones. Likewise, the only one of President Nixon's appointees to recuse in United v. Nixon was William Rehnquist, who recused because of his work in the Office of Legal Counsel, not because he was a Nixon appointee.

Based upon the above, there would seem to be no basis for Justice Barrett to recuse from a 2020 election law case. But is it that simple?

During her confirmation hearings, Senate Democrats suggested Justice Barrett should recuse from election litigation, and former judge Michael Luttig wrote an op-ed arguing Justice Barrett may be obligated to recuse under the Supreme Court's decision in Caperton v. A.T. Massey Coal. Central to these arguments are not anything that Justice Barrett has said or done, but comments made by President Trump suggesting a reason to confirm a nominee prior to the election is to ensure that there are nine justices for any such dispute. Is this enough to justify recusal? I am not so sure.

Without question, Trump believes that a conservative justice is more likely to support the formalist, rule-bound arguments being raised by Republican office holders and campaigns in current election disputes, and wanted a justice confirmed for this reason. He may even think that any justice he appoints will feel indebted to him. But this tells us more about President Trump's motivations than it does about Justice Barrett's ability to adjudicate such cases fairly, and there is little precedent for judges recusing because of things litigants have said about them (as opposed to comments judges have made about litigants). Thus, President Trump could not get a judge to recuse just by disparaging his ethnicity or questioning his fairness (and this is as it should be, or litigants would be tempted to engage in manipulative behavior). Likewise recusal is never required just because a case is controversial or politically fraught.

It is also not clear that the importance of a case to a nominating president is enough to trigger recusal. Recall that when Justice Stevens retired, President Obama wanted to be sure that whomever he appointed would be able to participate in the pending ACA challenges (and not because he lacked any inclination about how such a justice would rule). He nominated his own Solicitor General, Elena Kagan, who had conveniently walled herself off from all ACA-related matters in the Justice Department and would not have to recuse in NFIB v. Sebelius. There is little question that had she not taken such actions at DOJ, she would not have been nominated (and that seems to have been the point), as President Obama was concerned about the potential outcome of the challenge to the Administration's central domestic policy initiative. Despite these facts, I was unconvinced by the arguments for Justice Kagan's recusal then, and I am not sure why the arguments for Justice Barrett's recusal are more persuasive now.

Are there reasons why Justice Barrett might still decide to recuse? Perhaps. Justice Kagan's Justice Department work was inside baseball. President Trump has repeatedly broadcast his desire to have a ninth justice who could help deal with contested ballots. Insofar as recusal rules are intended to help ensure public confidence in the courts, different conclusions may be justified where, as here, we have a President who insist upon making precisely the sorts of comments that could cause reasonable people to question a new justice's fairness. As I noted in this Washington Post story, President Trump's own norm-breaking behavior may justify a departure from the traditional norms of recusal. His repeated comments about the role of courts in the election—and the Supreme Court and his nominee in particular—are high-profile that they might create the sort of appearance problem that the recusal rules are designed to address. Simple prudence may counsel recusal in a special case like this. After all, we've never had a justice confirmed in the midst of an election before.

My tentative conclusion is that Justice Barrett has no obligation to recuse, and that her colleagues would agree based upon past practice. But I think it's a close call, largely due to the President's own intemperate and inappropriate behavior combined with the unusual timing of Justice Barrett's confirmation. If any recusal motions are filed, I am curious as to what arguments they will make, and how well they distinguish the present situation from prior practice.

At her confirmation hearing, then-Judge Barrett said she would take the possibility of recusal very seriously, discuss the matter with her new colleagues on the Court, and consider their advice. Should the prospect of recusal get raised, I expect she will do so. And if, in the end, Justice Barrett decides to recuse the President will have no one to blame but himself.

UPDATE: A few updates to the post.

First, on Tuesday morning, a motion for Justice Barrett's recusal was filed in Republican Party of Pennsylvania v. Boockvar, and it cites this blog post.

Second, last night, after the Senate vote, Justice Barrett was sworn in at the White House. The event was broadcast on TV, and is already being used in promotional videos by the President and his reelection campaign. Does this change anything? Perhaps, but I am doubtful.

The strongest argument that the use of these videos counsel in favor of recusal is that the videos themselves, and Justice Barrett's willingness to participate in the event, somehow indicate that she favors the President's re-election. If such an inference could be drawn, it would support the argument for recusal, much as Justice Ginsburg's comments expressing her desire that Trump lost the 2016 election counseled for her recusal in 2016 election cases. Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice's own explicit conduct and drawing one from videos produced by third parties. The case for recusal in the former instance is far stronger.

Finally, a small technical matter. The relevant provisions of the U.S. Code do include "justices" in those covered, but it's generally been understood that Congress could not enforce these limits other than through impeachment. Likewise, the federal Code of Conduct for United States Judges does not formally apply to justices, though justices have generally sought to abide by the Code's requirements.