Should Ketanji Brown Jackson Recuse in Harvard Admissions Case?

For the next term, one of the most prominent cases on the Supreme Court’s docket is Students for Fair Admissions v. President & Fellows of Harvard CollegeThe petitioners challenge Harvard University’s inclusion of race in its undergraduate admissions process. Petitioners allege that Harvard discriminates against Asian applicants. They ask the Court to declare that federal law bans all use of race for college admissions. Harvard however maintains that Harvard admissions policies are in line with Supreme Court decision. Grutter v. Bollinger, And that precedent should be kept.

If Judge Ketanji Jackson is elected to the Supreme Court in spring 2017, one of her first decisions would be to decide whether or not to withdraw from this case. Harvard’s Board of Overseers has had Judge Jackson as a member since 2016. According to Harvard’s website, this board is one of Harvard’s two governing bodies and plays an “integral role in the Governance of Harvard” through oversight and advisory roles. Although Judge Jackson is out of office this year, she was a member during the litigation.

 Washington Post This story explores the question of whether the relationship suggests that Justice Jackson should withdraw from the Fair Admissions for Students case. Article notes that justices do not have to follow the Code of Judicial Conduct, but they are generally bound by it when considering whether to remove a case from the court. It is crucial to note that the qualification “generally” refers to justices who are not bound by the code of judicial conduct. LessBecause of the inability to replace a recused justice on lower courts, recuses are less likely than those from lower courts to be involved in cases. A recusal can have the same effect in practice as a vote. For The petitioner.

Starting at Post article:

Jackson has a closer affiliation to Harvard. Since 2016, she has served on the oversight committee, providing “counsel for the University’s leaders on priorities, planning, and strategic initiative.” Herterm closes May 26. The court will then hear affirmative actions challenges to Harvard policies in the term that starts in October.

“Six years on the Board is a long time, so, to quote the federal recusal law, her ‘impartiality’ in the case — that is, in favor of Harvard, given her ties to the Board — ‘might reasonably be questioned’ here, meaning disqualification is required,” according to Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for reforms. . . .

Stephen Gillers from New York University, professor of law at New York University, said that a key issue in Jackson’s case is her involvement in the formulation of the admissions policy under scrutiny.

Jackson’s board was originally named in the lawsuit of 2014, but was removed as a party in 2014. The Harvard Corporation board has fiduciary liability. It is distinct from it.

You can find the following: Post According to the story, Judge Jackson seemed to be quick to withdraw in cases where there were an obvious or possible conflict of interests, even cases that included Harvard.

A list of all the cases in which Jackson took responsibility for recusing herself is one of more than 2000 pages Jackson sent to the Senate Judiciary Committee before her confirmation hearings. . . .

A second pair of cases involved her recusing due to her position on Harvard’s board. The university was not part of the litigations. Because she “was evaluating her own response to sexual assault guidelines” for colleges and universities, she decided not to challenge the Department of Education’s 2016 guidelines. She resigned two years later from any involvement in resolving the lawsuit that was filed against her by Harvard’s research librarian against Environmental Protection Agency. The government had failed to answer a public record request.

Jackson indicated in both the instances that Jackson believed Jackson’s impartiality was questionable and said that she considered this to be an incurable issue.

If Judge Jackson has the tendency to use this cautious approach like a Supreme Court justice judge, it would be a sign that she will resign. Will it really matter?

While it may seem big, the potential recusal of Harvard in this case might not have any impact on its outcome. Harvard won the case below. Therefore, it will require the votes of at most five justices for Students for Fair Admissions in order for Harvard to prevail. Harvard can continue its existing policies without reversing the vote. GrutterThe precedent is valid as the opinion of the lower court would stand and be confirmed without the issue of any precedential opinions in cases of tie votes. In such instances, the standard court practice would be to not issue any opinion.

It is assumed that Justice Jackson would join liberal justices to reject the petitioners claims. Her recusal wouldn’t make it easier for the petitioners. A 5-3 decision is legal. It has the same effect as a 5-4.  However, a recusal could make it less likely for the Court to issue an opinion affirming or clarifying upon. Grutter. While it takes four votes to reverse the opinion of the lower court, five would be required for Harvard to receive a precedent opinion.

It doesn’t matter if it matters, but this question is certain to be raised at the Senate Judiciary Committee confirmation hearings. We will see if Judge Jackson agrees to handle the recusal issue in this case in a particular manner.