Industry experts and lawyers have expressed concern – and doubts – that Barrett will recuse herself from cases again once she joins the court, in part because there are no rules for the Supreme Court justices who would force it to do so.
Pressed on the issue in questions written by Senator Sheldon Whitehouse, a Democrat from Rhode Island, Barrett would not pledge to recuse himself from business in the future.
“The issue of disqualification is a preliminary question of law which must be considered in the context of the facts of each case,” she wrote. “As Justice Ginsburg described the process used by Supreme Court justices in deciding to recuse themselves, it involves reading the law, reviewing precedents and consulting with colleagues. As a sitting judge and as a candidate for the bench, it would not be appropriate for me to advise on abstract or hypothetical legal issues.
Barrett has not recused herself in the past of cases involving the oil industry’s most powerful lobby group, the American Petroleum Institute, even though her father was an “active member” of the Law Subcommittee. exploration and production of the group as recently as 2016, and twice served as chairman.
Environmentalists have already expressed concern over Barrett’s handling of environmental issues during her confirmation hearing, in which she refused to accept science that shows humans are dangerously heating the planet and said that ‘she could not speak out on the issue of climate change because it was a “very controversial subject of public debate”. She separately stated that she did not have “strong views” on climate change.
His views are behind even most mainstream Republicans, many of whom have stopped denying climate change and instead started downplaying its impacts or suggesting that a free market and new technology will be enough to solve the problem.
In the very likely event that it is upheld, Barrett’s decision on whether to recuse herself from cases involving Shell given her dispute will be known relatively soon, as the Supreme Court recently agreed to hear a case in which the city of Baltimore is suing major oil companies. companies, including Shell, for damage related to the climate crisis.
“Justice Barrett’s breakouts last week and in response to our questions for the record may be what Senate Republicans needed to block this candidate for their big donors, but that’s not good for a court that needs to to be seen as giving every litigant a fair process and impartial decision, ”Whitehouse said. “As the Senate rushes to get her confirmation ahead of the election, we have to ask whether she will recuse herself in cases involving subsidiaries of Shell, or the American Petroleum Institute, once before a court without a code of ethics; especially where his climate change escapes aligned with industry propaganda.
At the heart of the Baltimore case – the outcome of which will likely influence similar legal challenges in a dozen other lawsuits across the country – is whether cities and states can seek damages by through state laws for damage from the climate crisis, which they blame. on business.
According to Scotusblog, the case before the Supreme Court centers on a narrow procedural and technical issue concerning federal law. But Barrett’s handling of the case will nonetheless be closely watched, in part because another Conservative judge, Judge Samuel Alito, has stepped down from the case.
Of 16 lawsuits from state and local governments that want courts to hold oil and gas companies accountable for the effects of the climate crisis, 13 name Shell.
Jean Su, director of energy justice and lawyer at the Center for Biological Diversity, said that while Barrett does not recuse himself from cases involving the company, “it accurately reflects the ethical outcome of this tribunal.
“If you now have the supreme judiciary and judges who completely flout the pretty strict and dry ethics rules, you are very strongly discrediting the judiciary,” Su said. “It will be a sign that the highest court in the land is political.”
Helen Kang, professor of law and director of the Environmental Law and Justice Clinic at Golden Gate University School of Law, said that if Barrett had recused earlier “unless there was a change of circumstances, it seems she should recuse herself ”.