Should Justice Barrett Recuse Herself from Election Cases?

This is not about criminal law, but might prove to be of considerable interest to readers in coming weeks.  It may turn out that tomorrow’s election will come down to a few closely contested key states (e.g., Pennsylvania, Wisconsin, Michigan, Arizona), and that, in those states, there will be heated disputes about ballot counting and other kinds of alleged election irregularities.  These could wind up in the Supreme Court.  With Chief Justice Roberts sometimes joining the liberals, the result could turn on whether Justice Barrett participates in the decision.  The question whether she should is thoughtfully addressed in this balanced article by Prof. Jonathan Adler of Case Western Reserve.  (Hint:  There is a reasonable argument that she should recuse herself but an at least equally strong argument that she shouldn’t.  Although she alone makes the call, she would very likely consult with her fellow Justices in making her decision).

3 Responses

  1. John Smith says:

    Bill,

    If you were in ACB’s shoes, what would you do?

    JS

    • Is John Smith your real name? If so, you are probably sick of that question, and I apologize. If not, please edit your profile to give your real name.

    • Bill Otis says:

      I’ll assume John Smith is your real name for present purposes. I would wait to see the specifics of the case and then decide. Waiting for specifics has the advantage of making the nooks and crannies of the controversy concrete, and also lets a judge know if there is some reason not visible from the present general landscape arguing either for or against recusal.