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Justice Barrett's Other Confounding Non-Recusal (Update: She's Now Recused!)

Update: After Fix the Court notified the press on this issue midday Tuesday, who in turn notified the Court, Justice Barrett is now listed as recused in this case. According to the Court’s press office at 3:34 p.m. on April 27: “The order for 20A150 was corrected to say Justice Barrett took no part in the consideration or decision of the application.”

On Monday, the Supreme Court released an order in a Trump-era public charge rule case that had gone through N.D. Illinois and the Seventh Circuit — albeit obliquely, as we show in this chart — but on which Justice Barrett ruled twice.

Though we weren’t expecting a recusal in the March 9 Rule 46.1 order in this case, we believe there should have been one in yesterday’s order, especially since the order language (i.e., “we deny the application,” with no dissents) presumes nine justices participating.

The states aren’t even trying to hide the ball or use a different vehicle (recall the other public charge petition, 20-449, was also Rule 46.1ed in March), as they cite one of Barrett’s opinions three times in their SCOTUS petition, 20A150. And though they raise a novel issue, it’s undoubtedly the same case.

It’s disappointing that there are so many ethical questions swirling around a new justice, between Barrett’s non-recusal in this case; the non-recusal in the AFPF case, after AFPF’s sister organization spent $1 million on her confirmation; the $2 million book deal (which we’re fine with, though others aren’t); and the non-recusal in BP et al. v. Baltimore, where Exxon, an “al.,” had been on her recusal list as recently as September.

And it’s not like she’s not recusing, as she’s already stepped aside from more than 50 Supreme Court petitions that arrived via her former court. This is a bit reminiscent of Justice Kagan’s early tenure non-recusals on Affordable Care Act petitions, amid dozens of recusals from anything else that had crossed the SG’s desk.

Bonus, though: this is yet another argument in favor of cameras in the courtroom, since you can actually see Barrett sitting on an earlier version of the case (screenshot from argument at top right).

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