Judge Ketanji Brown Jackson’s pledge to recuse herself from cases involving affirmative action at her former alma mater is raising questions about double standards.
Jackson, who is poised to become the first Black woman to sit on the Supreme Court, has had to answer questions ranging from her views on the Commerce Clause to critical race theory. But one line of questioning from Sen. Ted Cruz (R-Texas) has drawn particular scrutiny.
On March 24, the final day of confirmation hearings, Cruz asked Jackson if she would recuse herself from an upcoming Supreme Court case involving affirmative action at her alma mater, Harvard University, given that she serves on Harvard’s board of overseers. The school is being sued over its admissions policy, which plaintiffs claim discriminates against Asian American students.
The line of questioning and Jackson’s agreement to recuse herself from the case further illustrates the parties’ asymmetric approach to Supreme Court appointments. During Amy Coney Barrett’s confirmation hearings, Barrett faced only light scrutiny from Democrats about her father’s longtime employer, Royal Dutch Shell.
Barrett declined to say whether she planned to recuse herself from oil company cases — and Democrats somehow never asked Barrett outright whether she intended to participate in a landmark case involving Shell and other oil companies being sued by cities for climate damages. Despite the fact that she had recused herself previously in cases involving four Shell entities due to her father’s work, Barrett ultimately sat for the case and joined the majority in vacating a decision opposed by the company and the other fossil fuel giants.
Barrett similarly has not recused herself from cases involving the American Petroleum Institute, the powerful fossil fuel industry lobby, despite her father having a 20-year relationship with the group. Her father twice served as chairman of the institute’s subcommittee of exploration and production law and was an “active member” of the subcommittee as recently as 2016.
Barrett and other conservative justices failed to recuse themselves from cases involving dark money groups that spent millions to get them seated on the bench.
Last July, the entire court sat for a case involving the Americans For Prosperity Foundation (AFPF), the charitable arm of Charles Koch’s main political advocacy outfit, which was suing the state of California over its requirement that nonprofit groups submit Internal Revenue Service tax forms to the state’s attorney general on the grounds that its First Amendment guarantee of free association was being violated by the policy.
Americans for Prosperity (AFP), the sister social welfare organization of AFPF, spent millions on an ad campaign urging senators to confirm Barrett to the bench. AFP also fought to secure the confirmation of Justices Gorsuch and Kavanaugh with campaigns of targeted ads, door-knocking, and phone calls.
In April 2021, the high court ruled in AFPF’s favor, striking down California’s policy. Barrett, Gorsuch, and Kavanaugh were in the majority.
Justice Clarence Thomas is now facing calls for impeachment or resignation, including by Rep. Ilhan Omar (D-Minn.) and Alexandria Ocasio-Cortez (D-N.Y.), after he sat for a case that involved his own wife — something the public only found out about last week.
Thomas, who was recently hospitalized for an undisclosed infection, decided not to recuse himself when the Trump administration asserted privilege over records from the National Archives sought by the special House committee investigating the January 6 Capitol insurrection. The records in question were related to Trump’s actions before, during, and after the events of the day. President Joe Biden, meanwhile, had come out in favor of disclosing the records.
In an unsigned order, the court rejected Trump’s request but Thomas, who did not dissent, noted he would have sided with the former president. Production of the documents has since revealed that Thomas’ wife Virginia, a longtime right-wing activist, urged Trump’s chief of staff, Mark Meadows, to work to overturn the results of the 2020 election in text messages.
The messages also indicate her endorsement of conspiracy theories linked to QAnon, the extremist ideology whose adherents believe Trump was saving America from a cabal of deep state pedophiles.
“Do not concede,” Thomas texted Meadows on November 6, 2020. “It takes time for the army who is gathering for his back.”
