The New Judge Jackson Dog Whistle Just Dropped And It’s So Bad

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Judge Ketanji Brown Jackson (Photo by H2rty via Wikimedia Commons)

She’s not even on the bench yet and they want her to take a leave of absence.

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Given that requesting Judge Jackson’s LSAT scores failed to do more than make Tucker Carlson look like that overzealous gunner trying to make small talk at the 0L meet-and-greet, the new talking point to threaten her legitimacy is the argument that she should recuse herself from an upcoming case involving Harvard that will determine the fate of allowing race to influence college admissions procedures. The argument is that Jackson’s connections to Harvard risk appearing as caveats to her potential neutrality toward her judicial opinions. Since she sat on a board whose scope presumably includes making admissions decisions, there is a risk that she has intimate knowledge about the process that poisons the well. For some legal commentators, this looks to be a cut-and-dried reason that she should recuse herself from the case:

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Jackson should recuse herself from the case. The use of “should” is not meant to suggest any real question of the ethical choice to be made; rather, it reflects the court’s curious position on ethics matters. Justices have long maintained that lower court judges cannot sit in judgment of their own conduct, but the ethical rules are treated as discretionary for each justice. Although James Madison stated in Federalist 10 that “No man is allowed to be a judge in his own cause,” Supreme Court jurists have long demanded precisely that unilateral power in judging their own ethics.

The impetus for using should rather than must here is that, like it or not, there is no code of judicial conduct that Supreme Court justices have to abide by. Which is why current justices are able to wax poetic about the importance of impartiality as they clearly bat for their team. I respect that the angle here is a little more nuanced than “she went Harvard, she no good, big bias” — lest Chief Justice John Roberts and Justices Kagan and Gorsuch would be getting the boot too. There is at least some, ahem, color to the hesitancy given her seat on the board. But the thing that doesn’t feel right is that I’m sure some goofy reason for her recusal would have appeared even if she were not a board member; Jonathan Turley even admits that “[e]ven before Jackson’s nomination, conservatives called for any eventual nominee to recuse herself from the Harvard case due to Biden’s threshold criteria.”

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Given the long list of times SCOTUS members decided to not recuse themselves from ruling on cases, this feels like getting someone for jaywalking. And it is already a known talking point that the impartiality of another justice’s role in this case is suspect given his wife’s loud opposition to affirmative action.

I just want some consistency. I do think that the Supreme Court should have a clear code of ethics that the justices actually abide by. It would help to take them seriously when they insist the importance of other judges remaining impartial in political matters to engender public trust. But, and please tell me if I’m wrong here, doesn’t it seem odd to demand that new coworkers mind their Ps and Qs as their future colleagues are very clearly smashing stars into the triangle slot when it comes to appearances of impartiality.

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And as a preempt for the people who are already typing up their well-meaning emails asking me to do better reporting instead of just “playing the race card”:

https://vm.tiktok.com/ZTdUkSABh/?k=1

(Also for those people, that’s not me in the video. Thinking that we can’t be impartial and that we all look alike tend to run together.)

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Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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Courts, Harvard, Judicial Impartiality, Ketanji Brown Jackson, Supreme Court