Utah Supreme Court Justice John Nielsen has recused himself from two high-profile cases challenging the constitutionality of the Utah Legislature’s newly created rotating three-judge “constitutional court.” One case addresses gerrymandering, and the other concerns abortion.
Nielsen's most recent recusal came last week from the case stemming from an ongoing challenge to the state’s near-total abortion ban. Planned Parenthood Association of Utah sought his disqualification, arguing his impartiality might be questioned because, as a private attorney, he helped file an amicus brief on behalf of Pro-Life Utah in 2022 during the legal fight over the abortion ban. The Utah Attorney General’s office argued against Nielsen's disqualification, stating they had “no concerns” about him hearing the appeal. A clerk for the Utah Supreme Court initially noted that Nielsen “does not believe that amicus representation is a basis for disqualification,” but Nielsen disclosed his previous involvement. However, on September 3, Nielsen reversed course, with a clerk writing that “the duty to recuse is stronger” after further reflection.
Previously, in April, Nielsen “voluntarily disqualified” himself from the challenge to the three-judge panel arising from an anti-gerrymandering case. He cited work as a private attorney representing the Utah Republican Party in a prior appeal in the underlying case, brought by the League of Women Voters of Utah, Mormon Women for Ethical Government, and other plaintiffs. A Utah Supreme Court clerk explained that Nielsen felt he had acted as counsel for the Legislature rather than just for amici.
The new three-judge “constitutional court” was established by the Legislature to specifically hear challenges to state laws. Its creation followed the Utah Supreme Court's decision in 2024 against lifting an injunction blocking the state's near-total abortion ban, a move that "infuriated the Republican supermajority of the Utah Legislature." The Utah governor swiftly signed the bill to create this new court.
Opponents of the new panel, including plaintiffs in the gerrymandering and abortion cases, swiftly asked courts to block the legislation that created it as unconstitutional. They argue it enables state leaders to “forum shop” cases away from judges who have not given them favorable rulings. Proponents, including Senate President Stuart Adams, R-Layton, argued the court was structured to avoid such concerns because judges serving on the panel would be randomly selected.
Challenges to the new “constitutional court” have since reached the Utah Supreme Court, causing arguments in the underlying cases to be put on pause. Oral arguments for the abortion case are scheduled for October 5, and a judge from another court will be invited to take Nielsen’s place. Shireen Ghorbani, President & CEO of Planned Parenthood Association of Utah, issued a statement appreciating Nielsen’s recusal.
These developments come as the Utah Supreme Court undergoes significant changes. The Utah Legislature expanded the court from five to seven justices earlier this year. Governor Spencer Cox filled two initial openings with the appointments of Stephen Dent and Jay Jorgensen. Subsequently, two more openings arose after the resignation of former Justice Diana Hagen and the retirement of longtime Chief Justice Matthew Durrant. Last month, Governor Cox nominated attorney Michael Manssen and 5th District Judge Matthew Bell to fill those seats, with their appointments pending confirmation from the Utah Senate. Justice Nielsen himself took his place on the bench last year.
