Professor Jonathan Adler’s Rashomon Moment

 

Professor Jonathan Adler’s Rashōmon Moment

This is what Professor Adler wrote:

The strongestargument that the use of these [White House] videos [celebrating JusticeBarrett’s appointment] counsel in favor of [Justice Barrett’s] recusal is thatthe videos themselves, and Justice Barrett’s willingness to participate in theevent, somehow indicates that she favors the President’s re-election. If suchan inference could be drawn, it would support the argument for recusal, much asJustice Ginsburg’s comments [in an interview] expressing her desire that Trump [should]los[e] the 2016 election counseled for her recusal in 2016 election cases.

So far so good. Next, Professor Adler wrote:

Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice’s own explicit conduct and drawing one from videos produced by third parties. The case for recusal in the former instance is far stronger.

But what did that enigmatic statement mean?

Did Professor Adler mean?:

Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice’s own explicit conduct [i.e., Justice Ginsburg’s interview expressing disdain for Trump] and drawing one from videos produced by third parties [such as the White House’s filming Justice Barrett’s participation in festivities]. The case for recusal in the former instance [involving Justice Ginsburg’s speech] is far stronger.

Or, did he mean?:

Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice’s own explicit conduct [i.e., Justice Barrett’s attending White House festivities] and drawing one from videos produced by third parties [involving newscasters interviewing Justice Ginsburg]. The case for recusal in the former instance [involving Justice Barrett’s conduct] is far stronger.

I am not entirely sure I know what Professor Adler intended here. I think, but again, I am not sure, Adler’s use of the word “conduct” obscures the point he is attempting to make. I also think it likely different readers understood this paragraph very differently from one another. As to its original public meaning?

Seth

Seth Barrett Tillman, Professor Jonathan Adler’s Rashōmon Moment, New Reform Club (Oct. 27, 2020, 4:03 PM), <https://reformclub.blogspot.com/2020/10/professor-jonathan-adlers-rashomon.html>;

Jonathan H. Adler, Should Justice Barrett Recuse from 2020 Election Litigation? (Updated), Volokh Conspiracy—Reason (Oct. 26, 2020 10:39 PM), <https://reason.com/2020/10/26/should-justice-barrett-recuse-from-2020-election-litigation/>;