Should Amy Coney Barrett recuse herself from California v. Texas, the case challenging Obamacare? Chuck Schumer has called for it:
Sen. Schumer: “Judge Barrett should pledge to recuse herself from the case involving ACA a week after the election if she is confirmed.” pic.twitter.com/qPO8gkWSRQ
— The Hill (@thehill) October 11, 2020
Schumer argues that Barrett has “clearly said she’d strike down the Affordable Care Act” and has “serious conflicts of interest” regarding the ACA. On the former point, as I have detailed at length, while Barrett in her academic writing has indicated her disagreement with the 2012 NFIB decision upholding the individual mandate as an exercise of the taxing power, she did not give a view on whether she agreed with Justice Antonin Scalia that the whole law should be struck down in 2012, much less express an opinion on what to do in the current, very distinct ACA lawsuit — other than participating in an academic moot court exercise in which she apparently did not favor striking anything besides the mandate itself, if even that.
In any event, Supreme Court justices do not recuse simply because they are not completely ignorant blank slates on issues before the Court. Schumer comes perilously close here to arguing that only justices who promise in advance to rule his way should be allowed to hear cases. Schumer argues that Trump has said that he wants judges who will rule in his favor. But we all know Trump says things, and the Supreme Court tends to ignore them. The justices have done so repeatedly, even Trump appointees and even in cases involving Trump’s own financial interests.
Barrett could, in theory, justify recusing from the ACA case on the grounds that she participated in a moot court on the subject and issued a ruling. Doing so would have been politically savvy, given how badly Democrats want to make this about a weak challenge to the ACA. It would have left them with little to say today. New justices have routinely recused from cases they’d heard already while sitting on a lower court (Justice Kavanaugh did so on several cases that had gone through the DC Circuit while he was there). But even if that were good politics, it would not be good for the administration of law. Supreme Court justices have an obligation to stay on cases if they can, because unlike lower-court judges, they are not so easily replaced on a case, and it is certainly possible that at least some questions in California v. Texas (such as standing to sue) will be deadlocked 4-4 without her. And the argument for recusing from a case you heard earlier in the litigation is that you may be biased by prior involvement with the litigants and the record, not just that you formed some initial impressions of the case. None of that is true here, where Judge Barrett’s involvement has been no more than that of a judge who read media accounts of a case and discussed it with friends before reading the briefs, the precedents, and the record.
Sometimes, being a judge means that you have to take the responsible route instead of the politically beneficial one.