The Ivy League institution, Harvard University, has recently filed a lawsuit against the Department of Homeland Security over its decision to ban foreign students.
This move has sparked a renewed debate over the potential involvement of Supreme Court justices in cases where they may have personal ties. This lawsuit could be on a fast track to the Supreme Court, bringing the issue of recusal to the forefront.
According to Fox News, four of the Supreme Court justices are Harvard alumni. While being an alumnus does not typically necessitate recusal from a case, deeper involvement with a university could potentially influence the decision-making process.
James Sample, a constitutional law professor at Hofstra University, shared his thoughts on the matter with Fox News Digital. He stated that it would be "untenable" for justices to recuse themselves from every case involving universities they attended or were connected to. However, he acknowledged that under certain circumstances, recusals could be appropriate. He explained, "A recusal is entirely subjectively applied by the justice in his or her own case, and, rightly or wrongly and I'm among those who have criticized the practice the practice on the Supreme Court is that only the justice in his or her own case, and no one else, makes that determination."
Among the justices with ties to Harvard are Neil Gorsuch and Elena Kagan, both of whom attended Harvard Law School. Chief Justice John Roberts and Justice Ketanji Brown Jackson also have connections to the university, having completed both their undergraduate and law degrees there. Kagan also served as the dean of Harvard Law School.
Ed Whelan, a legal scholar and former clerk for the late Justice Antonin Scalia, told Fox News Digital that a justice's personal affinity for a university, such as having attended Harvard or being a fan of University of Alabama football, should not be grounds for recusal.
Justice Jackson's ties to Harvard are perhaps the most significant. Appointed by former President Joe Biden, Jackson served a six-year term on the Harvard Board of Overseers through 2022, and her daughter is currently a student at the university. Whether Jackson should recuse herself from Harvard-related litigation can only be determined by her, according to Professor Sample, due to the subjective nature of the judicial recusal statute.
Harvard's latest lawsuit, filed in Massachusetts, claims that the Trump administration's decision to ban international students at Harvard by revoking their visas is unconstitutional. The university's attorneys requested an emergency restraining order, which was granted within hours by Judge Allison Dale Burroughs, an appointee of former President Barack Obama. This order temporarily halted the Department of Homeland Security's visa operation against Harvard and could potentially fast-track the case to the Supreme Court.
In 2023, Jackson recused herself from a landmark affirmative action case involving Harvard, while the other three justices affiliated with the university did not. Legal experts have suggested that Jackson's recusal was necessary due to her active role on the university's governing board at the time of the case. However, Harvard's new cases could present a different scenario.
"The specificity of the particular nexus that connects the justice to the specific interest at stake in litigation, as that gets more specific, as that nexus gets closer and closer, the potential for an appearance of conflict increases," Sample told Fox News Digital.
Harvard's visa case is one of two lawsuits the university has filed against the Trump administration this year. The second lawsuit, filed in April, alleges that the Trump administration improperly froze more than $2 billion in grant money and contracts. This case is progressing at a slower pace than the visa lawsuit.
The issue of recusal recently made headlines when Justice Amy Coney Barrett recused herself from an unrelated case, resulting in a deadlocked decision. This decision left a block on the creation of a religious charter school in Oklahoma in place. If Barrett had participated, the case could have had a significant impact on public funding for religious schools across the country.
Last week, the Supreme Court declined to take up a copyright case involving plagiarism allegations due to recusals. The nonpartisan group Fix the Court speculated that four of the five recused justices had published or planned to publish books with Penguin Random House, whose parent company was named in the suit.
Despite repeated calls from Democrats for conservative Justice Clarence Thomas to recuse himself from Trumps 2020 election subversion case due to his wife's attempts to reverse the election results in favor of Trump, the justice ignored these requests. Similarly, Justice Gorsuch, a Columbia University alumnus, is unlikely to recuse himself from cases brought by the school solely based on his attendance there.
The ongoing debate about recusal in the Supreme Court, particularly in cases involving universities with which justices have personal ties, underscores the complexity of maintaining impartiality in the judicial process. As Harvard's lawsuit against the Department of Homeland Security progresses, the potential involvement of justices with personal ties to the university will continue to be a point of contention.
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