Dear Justice Barrett,
I hear that you will be asked to recuse yourself in the upcoming voting litigation about the presidential election. Here are my thoughts on how to rule on those requests:
You have received an appointment for life. Now is the time that you start to prioritize your independence, your role in protecting the Court as an institution held in great respect among our citizens and the rest of the world, and yes, selfishly–your own legacy.
*Independence: Your own view of whether you lack personal bias or prejudgment in these voting cases is only part of your consideration. The self-proclaimed independence of Justices does not fully satisfy the importance of judicial independent decision making. The public’s view of your independence is crucial.
You were selected from the sea of hopeful qualified candidates by a man who announced that you would likely decide cases assisting him with holding onto the presidency. I understand that you did not have control over what this man was saying. But his announcement is part of the facts that you must consider. His announcement casts aspersions on your impartiality and independence.
*The Integrity of the Court: Our Constitution casts the U.S. Supreme Court with a role as important as the Presidency and the Congress. Whether or not you believe that U.S. democracy is losing its respect with the rest of the world, I have confidence from listening to your confirmation hearings that you wish to maintain the prestige and impact of the Supreme Court. Given our divided nation, your protestations that you are pure of heart and free from bias will fall on deaf ears. To be blunt: if you do not step aside, your failure to recuse is proof that the Court is a tool for political ends.
*Personal Legacy: From all appearances you had a good and proper upbringing. That upbringing no doubt taught you that you should show gratitude to someone who gave you the biggest legal prize ever: a life-time appointment to the nation’s highest court. Perhaps you were also taught that you had a duty of loyalty to those who had done you a great honor.
In these challenging times, these moral principles clash with your duty of independence and interest in the integrity of the Supreme Court. Concern with your own personal legacy should not beat out these values. But I advise you nonetheless: if you don’t recuse yourself, you risk being viewed as (forgive my rough language) a “political hack.” Soon after taking the bench as an Associate Supreme Court Justice, a conservative whom I am guessing you admire, William Rehnquist, decided not to recuse himself in the case of Laird v. Tatum. The case presented the precise issue on which he had expressed his opinion before becoming a Justice. With your nimble legal mind, I have confidence you could distinguish the case from your present situation. But that’s not the point. The point is that the decision in Laird v. Tatum dogged William Rehnquist throughout his judicial career and remains –to many—an unsavory (and unfortunate) part of his judicial legacy.
Laura E. Little
Laura Little is the James G. Schmidt Professor of Law at Temple University School of Law. A former law clerk to Chief Justice William Rehnquist, she is the author of numerous books and articles on the U.S. Constitution and the federal judiciary.