Aaron Belkin, the executive director of the liberal activist group Take Back the Court, wrote a letter to Supreme Court Justices Samuel Alito and Brett Kavanaugh last week demanding they recuse themselves from a few upcoming Title IX cases. Their crime, Belkin explained, was posing for a photograph with Brian S. Brown, the president of the National Organization for Marriage, which had filed an amicus brief for the cases in question. Belkin made the request sound urgent.
While the Code of Conduct unfortunately does not apply to the Supreme Court, each justice has an ethical duty to decide for themselves if recusal is necessary to avoid bias or the appearance of bias. In order to meet this duty, you must recuse yourselves s from the three cases currently before the court for which the National Organization for Marriage has filed briefs. The fact that the Supreme Court does not have formal ethics rules is no excuse for behaving unethically.
The credibility and impartiality of the current Supreme Court is in tatters. Posing for photographs with the president of an advocacy organization that has filed briefs in matters pending before the court makes a mockery of Chief Justice Roberts’ assertion that a judge’s role is to impartially call balls and strikes. If you refuse to recuse yourselves, this incident will further illustrate the urgent need for structural reform of the Supreme Court in order to restore a Court that understands its role is to protect individual rights and our democracy.
Judicial Crisis Network President Carrie Severino argues that there's no difference between Alito and Kavanaugh posing for a photo and Justices Ginsburg, Kagan and Sotomayor speaking at the University of Minnesota, Georgetown Law School, Yale University, or attending a forum at UC-Berkeley with the law school’s dean, Erwin Chemerinsky, all of whom have filed amicus briefs in a few pending Supreme Court cases, including a big one on DACA.
There is a difference. Those justices are liberal.
“Consider the level of inconsistency it requires to maintain that a meeting such as this one, likely fleeting and superficial, demands recusal, while maintaining at the same time that numerous protracted public appearances other justices have made at institutions and/or with individuals that were signatories of briefs before the Court do not require recusal,” Severino notes.
The Judicial Crisis Network has been working overtime trying to disprove liberal narratives about conservative justices. The past few weeks, for instance, Severino has had to explain why President Trump's 9th Circuit Court nominee Lawrence VanDyke is not a lazy, arrogant bigot, as suggested by the American Bar Association's anonymously sourced memo, which brought VanDyke to tears during his confirmation hearing. It was the ninth time the ABA has marked a Trump nominee "unqualified."
Take Back the Court, it should also be noted, has condemned Justices Alito and Kavanaugh before as part of the "extreme, right-wing majority, which is rapidly turning the court into little more than a partisan extension of the Republican Party."