When Justice Amy Coney Barrett Should Have Recused Herself but Didn’t

As explained by me in The American Prospect.  Here is the gist: 

The Supreme Court’s Inadequate Recusal Policy

BY STEVEN LUBET 

JULY 7, 2021

 U.S. Supreme Court justices can use concurring opinions to clarify, amplify, or even distance themselves from the majority opinion of the Court. Sometimes, the simple fact of concurrence, without any explanation, can tell us a great deal—perhaps more than intended—about a justice’s outlook and approach to the law. That is what happened when Justice Amy Coney Barrett joined Chief Justice Roberts’s 6-3 majority opinion in Americans for Prosperity Foundation v. Bonta, a case in which she should have recused herself.

Americans for Prosperity went all in for Justice Barrett, “launching a significant national ad campaign” on her behalf, focused on “eleven key states.” Its “grassroots activists” made or sent over 750,000 telephone calls and letters to senators urging her confirmation. Although the seven-figure operation was officially conducted on behalf of the parent organization, rather than the foundation, there is no doubt that the two are virtual alter egos, essentially separated by nothing more than tax status. They operate out of the same office suite in Arlington, Virginia, where both outfits receive contributions. Two of the nonprofit foundation’s three board members are also officers of Americans for Prosperity.

It has been the Supreme Court’s “historic practice” to leave recusal questions to the determination of each individual justice, rather than submit them to the full court. The unfortunate consequence of that approach is fully evident in this instance, where Justice Barrett has seemingly disregarded both a federal statute and a previous SCOTUS decision.

In our highly polarized era, we must look to the courts more than ever for neutrality, independence, and objectivity. A justice who sufficiently valued the appearance of impartiality would not have participated in Americans for Prosperity Foundation v. Bonta.

You can read the entire piece at The American Prospect.