Last term, the Supreme Court decided two affirmative action cases brought by Students for Fair Admission. Justice Jackson was recused from the Harvard case, since she served on the Harvard Board of Overseers. But Jackson participated in the University of North Carolina case. Ultimately, the Court only issued a single decision. Everyone can reasonably assume that Justice Jackson reviewed portions of the draft that concerned the Harvard case, even if she signaled that she didn't actually participate in that case.
Richard Re criticized Jackson. I defended Jackson. I contended that the "duty to sit" on the Supreme Court is significant, and should not be discarded lightly–even where some people may see a potential conflict of interest. Moreover, I surmised that Jackson consulted with her colleagues on how to proceed. Indeed, every Justice signed off on how Jackson characterized her role in the case, and presumably agreed with her decision.
Another term, another "recusal." (Will Baude flagged it here.) The Supreme Court originally granted cert in Loper Bright. Justice Jackson heard oral argument in that case during her ever-so-brief tenure on the D.C. Circuit, but did not issue an opinion in that case. (Justice Thomas jokes that he was on that court for a short period, but at least he made it past the one-year mark.) Despite her limited involvement in the case, Jackson recused from Loper Bright. Later, the Court granted cert in Relentless, a similar case from the First Circuit. The thinking was that this would give Justice Jackson a chance to participate. But unlike the two SFFA cases, where the UNC case had the Fourteenth Amendment issue, the questions presented in Loper Bright and Relentless were identical. This cert grant was designed solely to let KBJ ask questions during oral argument. That's it. The Court heard separate oral argument in each case. And participate Jackson did–according to Empirical SCOTUS she spoke for more than 13 minutes, whereas Justice Sotomayor spoke for about 6 minutes. Here is the breakdown for the whole term:
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