Justices shield spouses' work from potential conflict of interest disclosures - POLITICO

Justices shield spouses' work from potential conflict of interest disclosures - POLITICO

Justices shield spouses' work from potential conflict of interest disclosures - POLITICO
Sep 29, 2022 6 mins, 45 secs

Amy Coney Barrett stands with Jesse Barrett at her investiture ceremony at the Supreme Court.

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”.

Supreme Court Justice Clarence Thomas sits with his wife, Virginia Thomas, while he waits to speak at the Heritage Foundation on Oct.

Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention.

Mark Jungers, a former managing partner at Major, Lindsey & Africa, the firm that employed Jane Roberts as a legal recruiter before she moved to Macrae, told POLITICO the firm hired her hoping it would benefit from her being the chief justice’s wife, in part, because “her network is his network and vice versa.”.

Roberts lists his wife’s company on his ethics form, but not which lawyers and law firms hire her as a recruiter — even though her clients include firms that have done Supreme Court work, according to multiple people with knowledge of the arrangements with those firms.

The POLITICO investigation found that some spouses of other Supreme Court justices have also had careers of their own, but none currently appear to have the potential to intersect as closely with the court’s work as Barrett, Thomas and Roberts.

Like in the cases of Thomas, Barrett and Roberts, the names of his clients were not included in the filing.

As an independent branch of government, the Supreme Court has long been determined to set its own path on ethics, with each justice left to make their own determination on when to recuse themselves from cases with no enforcement mechanism to hold them accountable.

That means that some of the justices who are married receive a disproportionate share of their family income from their spouses.

Instead, a response to that query came from a spokesperson for the Supreme Court, who said: “Justice Barrett complies with the Ethics in Government Act in filing financial disclosure reports.”.

A spokesperson for Macrae declined to comment on the firm and Jane Roberts’ behalf.

In response to broader questions about the justices’ spousal disclosures, the court spokesperson also cited the federal law governing judicial recusals and pointed to a nearly three-decadeold statement in which justices with spouses or other close relatives in the legal profession rejected the notion of recusal from a case simply because such a relative works in a firm involved in the litigation.

“We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage,” the seven justices who adopted the policy declared.

One of the nation’s leading experts in legal ethics, New York University Law Professor Stephen Gillers, said the gaps in disclosure about the clients of justices’ spouses fuel public doubt.

The vast majority of the attention on income among Supreme Court spouses has centered on Ginni Thomas, who founded her own consulting firm known as Liberty Consulting.

In 2007, two years after her husband became chief justice, she joined the firm of Major, Lindsey & Africa, as a legal recruiter, and since 2019 has worked at Macrae.

There was a sense that Jane Roberts would be a big get for the firm — somebody who knows everyone in this town, with one of the most prestigious networks in Washington.

When Jane Roberts began her role at the firm, Jungers trained and mentored her.

Jungers said Jane Roberts soon proved to be highly effective at her job, and he noted that nearly everyone in the legal world would take her phone calls.

“As opposed to even some couples where he’ll have a network and she’ll have a network, it’s not really like that,” Jungers said, while also expressing his great admiration for Jane Roberts.

Jane Roberts has also represented top government officials at federal agencies with direct interests in court business, said Stephen Nelson, another D.C.-area hiring consultant who said he and Roberts had referred candidates to one another in the past.

“I think because of her background in law firms, she already had a strong reputation and network, but being married to the … chief justice of the United States Supreme Court … certainly doesn’t hurt,” said Nelson.

One consultant who worked with a firm with a Supreme Court practice said that the firm explicitly decided to work with Roberts because of her marriage to the chief justice.

“But you know, I think we’re living in a time when we have a lot of couples who are both, are working, and so I think that the court and, you know, society has to adjust to expect that,” Barrett said.

When asked about whether there should be court guidelines for working spouses, Barrett facetiously pushed back against the idea.

The memo — issued by the director of legal services at a firm that helps judiciary members fill out their forms — explains that judges may ask to redact their position at a homeowners’ association, travel reimbursements, a teaching arrangement or an agreement with a law firm, as it could “indicate your presence in an unsecured location” or “present a security concern.” Even a club membership or a lake cottage could require redactions for security concerns, said the memo, which POLITICO obtained from Fix the Court and independently confirmed its authenticity.

A court spokesperson, asked about Jesse Barrett’s work, pointed to the Code of Conduct for judges and a federal statute that says a judge or justice should disqualify himself when the jurist’s spouse has a financial stake in a proceeding before the court.

The spokesperson also said Barrett adopted a policy a group of justices issued in 1993 calling for recusal when a “relative’s compensation could be substantially affected by the outcome here,” including cases where a relative is a law firm partner that receives a share of its profits.

However, under the standard accepted by Barrett, a justice need not recuse if the law firm commits to permanently excluding income from Supreme Court litigation from that spouse’s partnership shares.

An email to Jane Roberts also brought a reply from a court spokesperson who said that as the chief justice’s wife developed her recruiting practice she drew guidance from a 2009 Judicial Conference ethics panel opinion that says: “As a general proposition, the fact that the spouse or the spouse’s business has a business relationship with an entity that appears in an unrelated proceeding before the judge usually does not require the judge’s recusal.”.

There’s some movement on Capitol Hill to change Supreme Court ethics rules, though it has found only modest traction.

Sheldon Whitehouse (D-R.I.) has introduced the Supreme Court Ethics, Recusal, and Transparency Act, which would require the Supreme Court to, among other provisions, establish recusal requirements — including cases that involve the income of a justice’s spouse — and certain required disclosures.

Efforts to pressure Supreme Court justices to adopt more stringent ethics rules have often turned on the question of whether the court, at the summit of an independent branch of government, must follow the dictates of Congress, another co-equal branch

In a 2011 report, Roberts noted that the high court has never addressed whether Congress has the power to impose financial reporting requirements on the justices

In more recent years, Roberts has expressed concerns about lapses in the federal courts’ ethics practices undermining confidence in the judiciary

However, with the increasing power of the court, the “American people deserve to know” the clients of Supreme Court Justice’s spouses, said Gabe Roth, executive director of Fix The Court, an advocacy group calling for stricter ethics reform for federal courts

He added: “It’s important for the public to know that the justices’ spouses not only have jobs but have jobs that oftentimes directly intersect with the work of the Supreme Court, and currently there’s no real good way to delineate that …

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