By Judge Raag Singhal

I write today to come to the defense of my colleague and close friend Judge Roy Altman.  I’ll call him Roy because that’s who wrote the piece in National Review that causes today’s heavy anonymous blog comments.  First, let me state the obvious.  I don’t write like Roy.  I wish I did, but I don’t.  If I did, I hope I would have the tempered confidence to write so well about a variety of topics.

Second, Roy wrote the subject Article sometime around October 18, 2023.  I know this because we talked about it and he would have liked to have not published it.  He sat on it for two weeks hoping someone else would write and publish a factual article that explained why an associate professor (Grewal) at his cherished university (Yale) should not receive tenure.  That article never came.  Instead, the Yale Daily News whitewashed an article by sophomore Sahar Tartak by removing facts negative to Hamas in a method reminiscent of denying the Holocaust.  And so, Roy went ahead and stated his view on this very important topic.  For those who take the time to actually read what Roy wrote, he never says Grewal should be kept from stating her views.  What he did say is she should not receive tenure and be in a position to influence impressionable students when she is wrong on both the facts and the law.

Third, today’s blog comments call for a muzzle over recusal.  But, when Justice Jackson was on the Harvard Board of Overseers immediately before her historic SCOTUS nomination—a position where she made decisions on tenure and student admissions—no one had an issue.  She was at that time also an Article III federal judge.  And, while she recused herself from consideration in Students for Fair Admissions, Inc. v Harvard College, because it involved students and policies that actually came before her in her Board position, she did not recuse herself on the companion case versus University of North Carolina, a decision that was viewed as appropriate and proper.  The point is that recusal is not required when the same issue with different litigants appears before the judge.  Of course, a Motion to Disqualify may be filed, and the judge may grant it but it is not required. 

Two cases are worth consideration.  In Texas v. Johnson, 491 U.S. 397 (1989), Justice Scalia famously wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.” Id. at 420-21.  The case involved flag burning and Justice Scalia had previously gone on record in an interview saying if he could, he would jail all flag burners, but when a flag burning case came before him, he voted with the majority to reverse the conviction in Johnson because his personal view could never trump the U.S. Constitution.  And of course, Justice John Paul Stevens—who spent most of his late retirement in Fort Lauderdale—was quite clear in his dissenting opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) on the topic of judicial impartiality.  Justice Stevens noted the fundamental attribute of judicial office requires countless judges to routinely make unpopular “rulings that are surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections.” Id. At 798. “It is the ability both to reevaluate [personal views] in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness.” Id. At 801. No doubt, Judge Altman’s reputation is one of fairness and impartiality.

At some point, truly, Roy Altman will move on from our Court as 10:34 and 10:55 seem to want and suggest.  That day will be a sad one for me although I will be happy for him.  He is an exceptional judge, colleague and friend.