Heated exchanges during Jackson’s Supreme Court confirmation hearings
Justice Jackson said she would recuse herself from an upcoming Supreme Court case that could determine the fate of racial preferences in higher education.
The Supreme Court, during its October term, must consider whether Harvard’s use of racially-conscious admissions policies violates federal civil rights law. The Harvard case is related to a similar lawsuit challenging the constitutionality of admissions policies at the University of North Carolina. Together, the cases give the court the ability to decide whether to prohibit the use of race in the admissions process.
Sen. Ted Cruz (R., Texas) asked Judge Jackson if she planned to recuse herself from the Harvard lawsuit, given that she holds an official role at the university.
“That’s my plan, senator,” she said.
Republicans were expected to seek a promise of recusal from Judge Jackson, who since 2016 has served on Harvard’s Board of Supervisors, a key board elected by alumni. His six-year term ends this year.
The council provides confidential advice to Harvard leaders on a range of issues and has historically advised the university’s administration on admissions policies. It is unclear what role, if any, its elected members played in developing or overseeing race-conscious admissions policies at issue.
Judge Jackson’s connection to Harvard runs deep. She is an alumnus of Harvard College and Harvard Law School. She served on the board of directors of the Harvard Alumni Association and interviewed applicants to Harvard College as a member of the Harvard Club of Washington, D.C. In October, she moderated a conversation with Harvard President Lawrence Bacow, on the school’s efforts to advance racial diversity at an event sponsored by alumni groups of color.
But a number of legal ethics authorities say it’s his recent service with the Harvard Board of Overseers that most vindicates his denial of admissions cases.
Under the current rules, a judge is supposed to disqualify himself from a case if his impartiality can reasonably be questioned, but that decision is solely up to each judge. Judges have no obligation to explain their disqualification decisions, which are not subject to review.
The practical calculations for a judge may be different from those for a lower federal judge, because if a Supreme Court justice recuses himself, there is no possibility of replacement and the court must operate with a reduced staffing.
The lawsuit against Harvard alleges that the school unlawfully used quota-type racial balancing tactics that artificially raised admissions standards for Asian American applicants. The lawsuit against UNC alleges that the public university’s flagship campus in Chapel Hill unlawfully considered student race in the admissions process, favoring black, Hispanic and Native American applicants. Both lawsuits were filed in 2014.
It’s possible the Supreme Court could separate its review of the Harvard litigation from the UNC case, which could give Judge Jackson the opportunity to participate in the latter case even though she sits at Harvard.
The court has taken a similar approach in the past, including when considering two cases in 2020 involving the Electoral College. There, Judge Sonia Sotomayor was challenged in one case but participated in the other.