Justice Barrett's Non-Recusal Does Court's Credibility No Favors
By Tyler Cooper, Fix the Court senior researcher
Today the Supreme Court, including Justice Barrett (despite calls for recusal), heard oral argument in Americans for Prosperity Foundation v. Bonta, which had at issue whether a California requirement that charities confidentially disclose the names and addresses of their major donors to the state is a violation of the First Amendment.
Justice Barrett was herself a major beneficiary of Americans for Prosperity in 2020, when the organization spent $1 million to support her nomination to the Supreme Court.
Recall that in Caperton v. Massey, a case from 2009, Justice Kennedy wrote for the Supreme Court:
“We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
Today, despite the conflict and Caperton still standing, Barrett declined to disqualify herself and instead participated in arguments, where she sounded likely to rule in favor of the organization that spent so much to assure that she would achieve confirmation just a few months ago.
It is worth noting that a judge’s or justice’s questioning in oral argument does not necessarily indicate how he or she will decide a case.
But the newest justice has done the credibility of the court no favors by ignoring optics in this case, and the appearance of impropriety will only be exacerbated if she ultimately rules in favor of her one-time financial benefactor.
And then at that time, Americans for Prosperity can go back to their (undisclosed) donors, point to Barrett’s participation, and tell them their $1 million investment is already paying dividends.