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Statement on Whether a Justice Jackson Should Recuse from Harvard Affirmative Action Case

FTC’s Gabe Roth issued this statement (Mar. 23 update: she said she’d recuse):

Terms on the Harvard Board of Overseers run for six years and begin and end at graduation. Judge Jackson’s term, which started in 2016, will terminate on May 26 of this year, so there won’t be a direct conflict by the time a Justice Jackson would hear the affirmative action case on the Supreme Court in the fall.

That said, six years on the Board is a long time, so, to quote the federal recusal law, “her impartiality” in the case — that is, in favor of Harvard, given her ties to the Board — “might reasonably be questioned” here, meaning disqualification is required. On the other hand, justices often ignore the recusal law in favor of what they call a “duty to sit” — that in close cases, the need to keep the Court at nine outweighs any perceived bias.

Balancing these factors, I believe it’d be prudent for her to recuse — though it’s not as clear cut as some pundits have made it out to be.

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