Today the Supreme Court heard oral argument in 19-1189, BP, et al., v. City of Baltimore. You can read a complete description of the issues in the case at SCOTUSblog and listen to the audio here.

Our concern is over the recusal question – namely whether Justice Barrett was right to sit on it, even though her father Michael worked at Shell for 30 years and is connected with some pretty direct observations about climate change. Barrett listed several Shell entities on her Sept. 2020 conflicts sheet.

What’s most interesting to us is how she decided that Shell went from being a conflict in September to not a conflict today.

The simple answer is that in September, she was fungible: if she bowed out of, say, Shell v. Smith, another Seventh Circuit judge could take her place, whereas today, there are no SCOTUS subs in case of disqualification.

But the above paragraph is conjecture, and like so much else at the court, we don’t know Barrett’s reasoning behind her decision. And she’s not required to reveal it.

Looking back to the fall, Barrett like her predecessors gave senators a noncommittal response to recusal questions during her confirmation hearing, and she like her predecessors offered a near identical answer to the recusal question in the Senate Judiciary Questionnaire, Q24b, p. 64. (Even Judge Garland’s 2016 SJQ included that answer, p. 139.)

What we’d prefer – and what we’re working toward – is a situation where Barrett were either required, or, say, nudged by the Chief, to provide an explanation of why she believes she’s not conflicted out.

Had the environmental groups that “called” for her recusal actually filed a recusal motion, it’s possible she would have felt compelled to respond to it, much as Justice Scalia famously did in response to a recusal motion from the Sierra Club in 03-475, Cheney v. U.S.D.C. Of note, Sen. Warren introduced a bill last month that would require justices to “provide a public written response” to a recusal petition, pp. 211-212.

As long as recusal decisions remain in the hands of each justice alone, and there’s no recourse or reprimand for justices who err save the high bar of impeachment, Mike Coney’s daughter will sit when there’s a close call, and so will the sons-in-law of the Viscount of Blakenham and Bobby Bomgardner[1], for that matter.

And we will move on, with another link of trust between the court and the public damaged.

 

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[1] Justice Breyer’s father-in-law is the Viscount; Justice Alito’s is Bomgardner. Both justices inherited great wealth upon their in-laws’ deaths, leading to some statutory, and some borderline, recusals.