Brett Kavanaugh is being asked to recuse himself from several high-profile cases concerning LGBT rights and sexual orientation after the controversial Supreme Court Justice recently posed for a photograph with the leader of an anti-LGBT organization.
On October 25, Kavanaugh and fellow conservative Supreme Court Justice Samuel Alito attended a religious event with leaders from the Catholic Church’s Congregation for the Doctrine of the Faith (formerly known as the Roman Inquisition) and the National Organization for Marriage (NOM), a group long-dedicated to fighting and rolling back rights for LGBT Americans through the federal court system. On October 29, NOM President Brian S. Brown tweeted the image in question–showing himself with Kavanaugh, Alito and others.
An open letter by left-wing judicial reform group Take Back the Court released on Wednesday calls on both Kavanaugh and Alito to recuse themselves from deliberating on three cases currently pending before the nation’s high court “in light of serious concerns about [their] impartiality” due to the photograph and meeting with Brown.
“The successful and unprecedented efforts by political branches to manipulate the size of the court for partisan purposes and your behavior, Justice Kavanaugh, during your confirmation hearings, have only deepened concerns about the politicization of the court,” wrote Take Back the Court’s Director Aaron Belkin. “Your decision to meet privately with an activist who has filed amicus briefs with the court in three pending cases seems to confirm the worst fears of [Brown’s] critics.”
The first two cases were consolidated into one because they both concern a gay male plaintiff who was fired due to his sexual orientation–alleging a violation of Title VII of the Civil Rights Act of 1964. The third case concerns a woman who was fired after she came out as transgender–also alleging a violation of Title VII. All three cases were heard for oral argument on the same day in October of this year.
“Justices Kavanaugh’s and Alito’s inappropriate conduct underscores the importance of judicial reform including expanding the Court,” Belkin told Law&Crime via email. “The Justices seem to be flaunting that they have the power to disregard ethics, decency and fairness, and there’s nothing anyone can do about it. But I’m not so sure that they’re right.”
Belkin cast his recusal request in terms of judicial ethics–citing the Code of Conduct for Federal Judges while acknowledging the Supreme Court is not technically governed by any sort of ethical body unlike all other federal judges.
“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,” Belkin continued. “In order to meet this duty, you must recuse yourselvess 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 open letter also makes an appeal to the high court’s public image:
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 [John] 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.
The full letter is available below:
[image via Jabin Botsford – Pool/Getty Images]