Jeff Jacoby / December 5, 2022

No, Justice Barrett Should Not Recuse Herself

Barrett’s personal religious convictions have no bearing on her qualification to take part in the court’s deliberation.

On Monday, the Supreme Court is scheduled to hear oral arguments in 303 Creative v. Elenis. The case was brought by Lorie Smith, a graphic artist in Colorado who wishes to expand into the field of custom-made wedding websites. For religious reasons, Smith opposes same-sex marriage and is unwilling to design websites promoting gay or lesbian weddings. Under Colorado law, however, discrimination on the basis of sexual orientation is illegal, and Smith may not refuse her services to same-sex couples.

The question before the Supreme Court is this: Under the First Amendment, can Colorado compel an artist like Smith, as a condition of doing business, to express views that violate her religious convictions? To put it differently: When freedom of speech and religion conflict with antidiscrimination law, which takes precedence?

All nine high court justices are expected to be on hand for Monday’s session. But in recent weeks there have been calls for Justice Amy Coney Barrett to recuse herself, on the grounds that her close involvement with People of Praise, a devout Christian group that firmly opposes same-sex marriage, calls into doubt her ability to consider the case fairly and impartially.

The recusal push comes from former People of Praise members, some of whom broke with the group because they were ostracized or excluded after coming out as gay. “I don’t believe that someone in [Barrett’s] position, who is a member of this group, could put those biases aside,” one such disaffected ex-member told The Guardian, “especially in a decision like the one coming up.” The former members also note that Barrett served on the board of Trinity Schools, a consortium of Christian academies that reportedly denied admission to the children of same-sex parents.

Does this add up to an obligation on Barrett’s part to withdraw from the Colorado case? Not by a long shot.

Plainly, Barrett’s personal religious convictions have no bearing on her qualification to take part in the court’s deliberation. The Constitution flatly forbids any religious litmus test for any public position in the United States. Barrett’s deeply rooted Catholicism is no more a reason for her to recuse from a case involving religion than the deeply rooted Protestantism of Justice Ketanji Brown Jackson or the Conservative Judaism of Justice Elena Kagan.

Nor is Barrett obliged to step back because of her ties to People of Praise, a group not involved in litigation before the court. “Supreme Court justices have views and are connected with a lot of organizations,” Jonathan Entin, a professor of constitutional law at Case Western Reserve University, told the Washington Examiner, “and that’s not enough” to trigger a recusal. Most justices bring to the court a myriad of social, professional, and political connections. The bar for withdrawing from a case is much higher.

Thus, Kagan did not recuse herself from key court cases in 2012 and 2021 that upheld the Affordable Care Act, even though she had been President Obama’s solicitor general and had played a role in formulating the Justice Department’s strategy to defend the law in federal court. Similarly, former Justice Stephen Breyer declined to recuse himself when the Supreme Court ruled in 2005 on the constitutionality of the federal sentencing guidelines — even though he had been a key architect of those guidelines when he served as chief counsel to the Senate Judiciary Committee.

On the other hand, when the court heard arguments last month on the use of racial preferences at Harvard, Jackson — a former member of Harvard’s board of overseers — did recuse herself, keeping a promise she made during her confirmation hearings. But she was not required to do so, and in any case she participated fully in the companion case involving affirmative action at the University of North Carolina.

Federal judges are required to disqualify themselves, according to the first sentence of the relevant law, whenever their “impartiality might reasonably be questioned.” The law itemizes the specific circumstances that can trigger such a determination. Among them: having acted as a lawyer for one of the litigants, having a financial stake in the outcome of the case, or having a personal prejudice concerning a party in a proceeding. Barrett’s religious views on same-sex marriage may be unfashionable, but they don’t come close to activating those triggers.

By longstanding tradition, justices decide for themselves whether to recuse from a given case. Chief Justice John Roberts emphasized in 2011 that “the Supreme Court does not sit in judgment of one of its own members’ decision whether to recuse in the course of deciding a case.” That is not just a matter of professional courtesy. As Roberts pointed out, if the other justices did review a colleague’s decision to recuse or not to recuse, “it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its members may participate.”

As a general rule, whenever there are calls for a justice to step back from a case, they come from people who want the court to rule in a certain way and expect the justice to vote the other way. In 2016, the late Justice Ruth Bader Ginsburg publicly denounced Donald Trump as “a faker” and said she couldn’t imagine the upheaval that would be caused by his election. Not surprisingly, Trump and others contended that she had disqualified herself from taking part in cases involving him or his administration. Critics on the other side of the spectrum have likewise demanded that Justice Clarence Thomas recuse himself from any cases involving the Jan. 6 riot, since his wife, an ardent Trump supporter, agitated for the Electoral College results to be rejected by Congress.

But the Supreme Court encourages its members to be highly wary of avoiding cases when it isn’t absolutely required that they do so.

In a joint “Statement of Recusal Policy” issued in 1993, the justices explained why. “Even one unnecessary recusal impairs the functioning of the court,” they wrote. The nation’s highest tribunal is not like the lower federal courts, where backup judges are available. “In this court, where the absence of one justice cannot be made up by another, needless recusal deprives litigants of the nine justices to which they are entitled.”

For nearly 100 years, the Canons of Judicial Ethics have enjoined every judge to “not be swayed by partisan demands, public clamor, or considerations of personal popularity or notoriety, nor be apprehensive of unjust criticism.” There is no indication that Barrett will be influenced by the clamor from those who dislike her religious views. Like Ginsburg, Kagan, Thomas, Breyer, and all their predecessors, she swore to “faithfully and impartially” judge the cases that come before the court. When oral arguments begin Monday morning in 303 Creative v. Elenis, expect to see Barrett in her seat, doing just that.

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