Last week, the liberal group Take Back the Court sent a letter to Supreme Court Justices Samuel Alito and Brett Kavanaugh, demanding they recuse themselves from three cases involving LGBT issues. Alito and Kavanaugh had met with Brian Brown, president of the National Organization for Marriage (NOM), which has filed an amicus brief in three cases involving alleged employment discrimination against gay and transgender people. Yet liberal justices have also met with academics who had filed amicus briefs in active Supreme Court cases.
“It’s absolutely absurd what they’re asking,” Brown told PJ Media in an interview on Monday. “I had a tour of Washington, D.C. with Cardinal Gerhard Ludwig Müller. We had an event with Cardinal Müller and there was an opportunity for the cardinal to meet the justices and I accompanied the cardinal.”
“This is crazy to say that Supreme Court justices don’t have the ability to meet with the cardinal,” the NOM president added. Both Alito and Kavanaugh are Roman Catholic.
“There’s a long history of justices being able to meet with anyone they want,” Brown added. “The way the court works is the justices have the ability to meet with anyone they would like.”
Brown had posted a photo of himself with Alito, Kavanaugh, Müller, and Gloria, Princess of Thurn and Taxis. Neither Alito nor Kavanaugh responded to requests for comment.
— Brian S. Brown (@briansbrown) October 29, 2019
Aaron Belkin, director of the liberal group Take Back the Court, sent a letter demanding Alito and Kavanaugh recuse themselves from the three cases: Altitude Express v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. These three cases center on whether or not Title VII of the Civil Rights Act — which prohibits discrimination on the basis of “sex” — prohibits discrimination on the basis of sexual orientation and gender identity.
“I write today to request that you recuse yourself from three cases currently pending before the Court in light of serious concerns about your impartiality raised by your decision to pose for a photograph for social media with the leader of an organization that has filed amicus briefs in those cases,” Belkin wrote. He further lamented that “the Supreme Court has become deeply politicized in recent years,” claiming that cases like the free speech case Citizens United v. FEC (2010) have “undermined the basic tenets of our democracy for partisan advantage.”
Belkin cited the Code of Conduct for Federal Judges, which states that judges must take care to avoid the appearance of improper influence. While members of the Supreme Court are not bound by this code of conduct, Belkin argued that “each justice has an ethical duty to decide for themselves if recusal is necessary to avoid bias or the appearance of bias.”
The liberal activist concluded his letter with a threat: “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.”
Yet Belkin notably did not mention two of the most politically-charged decisions in the Court’s history, Roe v. Wade (1973) and Obergefell v. Hodges (2015), in which the Court effectively made law by striking down state laws against abortion and same-sex marriage. The left has politicized the Court far more than the right. The notion of a “living Constitution” has enabled liberal justices to effectively write new rights into the Constitution, without the input of the people or the elected branches. Conservatives have fought for originalist justices who will allow Congress and the president to make law the way the Constitution stipulates.
In fact, this recusal demand seems particularly rich, coming after the Supreme Court engaged in rank judicial activism by legalizing same-sex marriage and at a time when Democratic presidential candidates are openly scheming to pack the Court.
While Belkin urged Alito and Kavanaugh to recuse themselves, he acknowledged that they have the freedom to meet with whomever they wish. If these two justices have to recuse themselves from these cases, liberal justices would have to do the same.
Indeed, Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, listed six recent meetings between liberal members of the Court and either academic institutions or prominent liberal lawyers who have filed amicus briefs in cases currently before the Court.
On October 9, Justice Elena Kagan participated in a colloquy at a Washington, D.C., synagogue with Seth Waxman, former solicitor general under Bill Clinton, who had filed an amicus brief on the other side of NOM in the same three LGBT cases. Severino rightly condemned Belkin’s blatant double standard.
“Consider the level of inconsistency it requires to maintain that a meeting such as this one [between Brown and Alito and Kavanaugh], likely fleeting and superficial, demands recusal, while maintaining at the same time that numerous protracted public appearances other justices have made at institutions and/or with individuals that were signatories of briefs before the Court do not require recusal,” Severino wrote.
“Having just employed a glaring double standard, Take Back the Court faces two options if it wishes to retain an ounce of credibility. It can extend its recusal demands to Justices Ginsburg, Sotomayor, and Kagan in the above-referenced cases. Or it can take back its one-sided demand laughably confined to conservative justices,” she concluded.
What lies behind such a blatant double standard? A Newsweek article on the Take Back the Court letter may suggest an answer. That article noted that Brown is also the president of the World Congress of Families, which has been accused of being a “hate group” by the far-left smear factory the Southern Poverty Law Center (SPLC). Naturally, Newsweek did not mention the SPLC’s recent sexual harassment and racial discrimination scandal, or the revelations that its “hate group” list is a scam to raise money and destroy its political opponents.
The SPLC has leveraged its history in bankrupting the Ku Klux Klan to “mortally embarrass” its political opponents by accusing them of being “hate groups” and placing them on the same list as the KKK. The SPLC often employs this invidious smear against critics of the LGBT movement. One deranged man took the SPLC “hate group” accusation to its logical conclusion and attempted to shoot up everyone in the Family Research Council (FRC).
Democratic senators have cited the SPLC in attempts to demonize conservative Christians whom Trump has nominated to judicial and administration postings. They often use guilt-by-association tactics, pressing nominees on whether or not they knew that “hate groups” opposed abortion or same-sex marriage when they joined these groups.
Belkin may have felt more comfortable employing this double standard against Brown because of the SPLC accusation. In his interview with PJ Media, Brown pushed back against the attack.
“Like Family Research Council and other groups, we’ve always condemned violence. We’ve always condemned hatred,” he said of the World Congress of Families. “Just for standing for the family, folks want to destroy you. That’s really not the way America works.”
Of Take Back the Court, he said, “They want to undermine, attack, and isolate those who believe what we believe, which is frankly a wide swath of America.”
Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.