The Supreme Court granted cert in Loper Bright Enterprises v. Raimando. Jon Adler explained that this case may overrule, or at least narrow the Chevron doctrine. However, the Court will be shorthanded. Justice Jackson recused herself. She participated in oral argument in this case during her ever-so-brief stint on the D.C. Circuit.

This recusal raise an obvious question: why grant this case which would be decided by an eight-member Court? The Court has been deluged by petitions seeking to overrule Chevron. Maybe there are specific rationales to favor this petition. Paul Clement, super lawyer, is counsel of record. And perhaps Clement highlighted the second question presented in an artful way, that gives the Court space to operate[.]

[It’s still curious. There are other cases in which this argument could be framed, too, but the recusal itself seems unnecessary. Blackman wonders whether KBJ’s recusal caught the other eight justices by surprise, and he questions the necessity of it, too. If all KBJ did was hear arguments and didn’t reach a written conclusion, there isn’t a conflict of interest. The decision by the DC Circuit was published in August 2022, two months after KBJ was confirmed to the Supreme Court, and in a footnote it states that KBJ “did not participate in this decision.” It’s not a conflict to be well-informed on the case. One has to wonder whether this is a performative recusal. — Ed]