When the US Supreme Court announces its decision in the case against Harvard University in June, the newest member of the court, Kentanji Brown Jackson, will not weigh in.
That’s because Jackson recused herself from the case — a decision that continues to spark controversy because other judges have failed to take similar steps, despite their own potential conflicts of interest.
“It is possible that Justice Jackson would bring a unique perspective to the debate on the issues,” said Michael Williams of the Coalition for a Diverse Harvard. “Perhaps she had a special understanding of how important it is to the university’s mission to have a student body that is made up of students from diverse backgrounds and experiences.”
Williams said the coalition’s fellows, students, faculty and staff are so concerned about the possibility of the court overturning affirmative action if they join more than 100 Harvard students in Washington, D.C., on the steps of the Supreme Court building during arguments today .
A graduate of Harvard and Harvard Law, Jackson served six terms on Harvard’s Board of Overseers until last spring. Her daughter Leila is currently a first-year student at Harvard. While she agreed to recuse herself from the Harvard case last spring at a Senate confirmation hearing at the request of U.S. Sen. Ted Cruz (also a Harvard Law student), legal experts said losing her voice as the first black woman in the nation’s Supreme Court deals a blow to racial justice.
Harvard’s pedigree is not unusual in the state supreme court and was not often a reason for rejection. Chief Justice John Roberts, another Harvard and Harvard Law graduate, did not recuse himself from the Harvard case, nor did Justice Elena Kagan, the former dean of Harvard Law School.
Boston University law professor Jonathan Feingold said he believes Jackson decided to take this step because she is doing everything she can to maintain the integrity of her role in court.
Feingold compared Jackson’s decision to Judge Clarence Thomas’ refusal to recuse himself in sedition cases following former President Donald Trump’s re-election loss despite his wife’s involvement in supporting the uprising.
“There’s certainly a context in which a scene of conflict occurs,” Feingold said. “In both cases, there is a plausible argument that there is a dynamic that would present at least the appearance of bias on the part of one of the judges.”
George Washington University law professor Jonathan Turley said Jackson’s ouster was necessary because her term on the university’s board of trustees directly overlapped with the timeline of Harvard’s admissions period, which is under scrutiny. He said Harvard’s board of trustees does not have “final say” over the college’s admissions process, but “intends to advise the university on admissions policy.”
“To me, there was a very clear and necessary basis for getting out of the Harvard case,” he said.
Turley, who has been publicly criticized as a Republican mouthpiece defending Trump from impeachment, disagreed that Thomas should recuse himself from the sedition cases. He argued that Thomas’ wife, Ginni Thomas, is a well-known conservative activist in Washington, DC, and that as his wife she is allowed to have a professional existence and identity separate from her husband’s. Her role in the case came into question when her emails to attorney John Eastman became public. Eastman played a key role in the effort to pressure former Vice President Mike Pence to prevent the confirmation of Joe Biden’s presidential victory.
“The views she expressed in those emails and messages were consistent with what she said publicly,” Turley said. “Of course, we can disagree with these views. But the idea that the judge has to remove himself because of this context does not convince me.”
Both Feingold and Turley agreed that Jackson’s ouster might not have major consequences given the Supreme Court’s conservative supermajority.
Williams said it’s a loss of perspective that could be felt for generations if the court’s conservative majority votes as many expect.
“One point that was made frequently in the commentary after Justice Jackson was nominated and ultimately confirmed through the confirmation process was that her perspective as a former public defender would be relevant to the Supreme Court,” Williams said.
Last spring, Jackson’s exit was widely seen as a blow to Harvard, with only two justices — Elena Kagan and Sonia Sotomayor — likely to rule in the university’s favor, allowing a 6-3 conservative majority to potentially overturn the current affirmative action policy. .
But Jackson’s opinions won’t be entirely unknown.
The Supreme Court separated a similar discrimination case from Harvard against the University of North Carolina. Jackson will be able to hear arguments and vote in the UNC case.
Clarification: This story has been updated to note that George Washington University law professor Jonathan Turley has been criticized for his support of former President Donald Trump.