On Monday, February 10, 2025, The Hill published an opinion piece by Steven Lubet, the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law, discussing the implications of recent Supreme Court recusals, particularly focusing on Justice Amy Coney Barrett. Lubet argues that Barrett’s recent decision to recuse herself from a case concerning public funding for religious charter schools signals a potential shift towards a more principled approach within the Court.
In his article, Lubet notes the increasing frequency of executive orders issued by President Trump, which he describes as unprecedented and potentially damaging to democratic values. He highlights several controversial orders, including attempts to abolish birthright citizenship and firing inspectors general without congressional notice. Lubet expresses hope that the Supreme Court will act as a counterbalance to what he characterizes as Trump’s extreme measures, despite acknowledging that the Court has historically favored the President, particularly during the 2024 campaign.
The conservative majority on the Supreme Court has previously provided Trump with favorable rulings, including a controversial decision granting him immunity from prosecution for actions taken during his first term. Lubet emphasizes that, unlike during Trump’s first term, there are fewer moderating influences within his administration, as it is staffed predominantly by loyalists and commentators from Fox News. With the Republican-controlled Congress largely acquiescing to Trump’s appointments, Lubet argues that the judicial branch may be the last line of defense against potential overreach.
Lubet specifically points to Chief Justice John Roberts as a potential swing vote who could diverge from the conservative majority. He also identifies Barrett as a likely candidate for such a defection, noting her previous disagreements with other justices on Trump-related cases. Barrett’s recent recusal from the Establishment Clause case, which involved public funding for religious schools, is highlighted as a sign of her commitment to integrity, though Lubet expresses concern about the lack of explanation surrounding her decision.
The article discusses Barrett’s connections to Notre Dame Law School, where she is an alumna and continues to teach. Lubet raises questions about whether her affiliation influenced her recusal, as the Religious Liberty Clinic at Notre Dame represents one of the parties in the case. He emphasizes the importance of transparency in judicial processes, particularly as the Supreme Court may face challenges concerning Trump’s executive orders in the future.
Lubet cautions that any rulings against Trump must be clear and detailed to withstand scrutiny and potential backlash from the President and his supporters. He underscores the necessity for the justices, especially Barrett, to provide thorough explanations for their decisions, as ambiguity could lead to further disputes regarding the Court’s legitimacy.
In conclusion, Lubet’s opinion piece underscores the critical role the Supreme Court may play in shaping the legal landscape in the face of executive actions by the President. He suggests that Barrett’s recusal, while seemingly minor, could reflect broader implications for judicial conduct and the importance of maintaining public confidence in the Court’s integrity. As the political climate continues to evolve, the attention to these judicial decisions remains paramount for the rule of law in America.
Source: The Hill
