If confirmed as a justice on the Supreme Court, Judge Ketanji Brown Jackson “should recuse herself” from a case over alleged discrimination practices in Harvard University’s admissions, according to legal scholar Jonathan Turley.
Jackson, President Joe Biden’s nominee for the Supreme Court, plays a role on the college’s board of overseers.
After Justice Stephen Breyer retires from the bench later this year, the Supreme Court is poised to hear arguments this fall in one of the most significant cases before the court regarding race-based admissions policies at Harvard and the University of North Carolina at Chapel Hill. If the Senate does confirm Jackson to succeed Breyer, her involvement on Harvard’s board of overseers would raise questions regarding the Judicial Code of Conduct, which instructs judges to “avoid even the appearance of conflicts or bias,” Turley wrote in an op-ed for the Hill on Tuesday.
“Since the board plays ‘an integral role in the governance of the university,’ the questions involved in the case before the court would appear to fall within the board’s broad discretion,” Turley said, adding that “Jackson not only has an institutional interest as a Harvard board member but likely has personal knowledge of admissions standards or policies from her service on this board.”
While Chief Justice John Roberts and Justices Breyer, Elena Kagan, and Neil Gorsuch are all Harvard graduates seated on the bench, Turley said being an alumnus is not likely to prompt recusals but that Jackson’s position as a member of a governing board for the college would be “profoundly inappropriate.”
Since the high court has consolidated the Harvard and UNC cases, Jackson will likely find herself in a position to recuse herself from both cases, according to a tweet from Ed Whelan, a senior fellow for the Ethics and Public Policy Center.
“If UNC case were separate, KBJ wouldn’t have to recuse from it,” Whelan said.
Some legal scholars, such as Louis Virelli, a law professor at Stetson University who has written a book on recusal, say it matters whether Jackson played a prominent role in creating Harvard’s admissions policy.
If a conflict of interest prompted a reasonable person to perceive an appearance of impartiality, “that strikes me as the one that would be most powerful with respect to Judge Jackson in this case,” Virelli told the College Fix in an interview. Still, Virelli argued the recusal statute could be unconstitutional in that it would alter the composition of the nine-member Supreme Court.
But Jackson’s anticipated succession of Breyer does not alter the present conservative 6-3 majority on the court, meaning a recusal from the forthcoming case would most likely not change how the justices will decide both admissions cases.
Despite the Democrats’ narrow majority in the Senate, reliant on Vice President Kamala Harris’s tiebreaking vote, Jackson is widely expected to be confirmed as the first black woman to sit on the Supreme Court as long as the party is united or if some Republicans cast their vote for her.
