The Thomases are the most enduringly egregious examples of why there needs to be not just an expansion of the Supreme Court, but real reforms that include finally making the court comply with a code of ethics—just like every other branch of the judiciary is compelled to do. But the Thomases are definitely not the only Supreme culprits in fishy spousal entanglements.
Meet Jesse M. Barrett and Jane Roberts, spouses to Justice Amy Coney Barrett and Chief Justice John Roberts, and subject to a deep investigative dive by Politico
Jesse Barrett’s law firm, SouthBank Legal, just happened to expand from its South Bend, Indiana, base to Washington, D.C., a year after his wife reached the Supreme Court. His specialties are “white-collar criminal defense, internal investigations, and complex commercial litigation.” His firm of fewer than 20 lawyers has clients in “virtually every industry,” including “over 25 Fortune 500 companies and over 15 in the Fortune 100.” Chances are pretty darned good that at some point, a case involving one of those companies has come before the Supreme Court.
But we don’t know, because Barrett doesn’t have to disclose any of her husband’s clients in her disclosure documents, much less recuse herself in any of those cases. Politico reports that in her most recent disclosure, she redacted the name of her husband’s firm. On his law firm bio Barrett says he has “tried several dozen federal cases to jury verdict and has handled numerous appeals, including successful arguments in state and federal appellate courts.” So his own work, and his firm’s, could definitely come before the Supreme Court. But in those appellate courts, every judge is going to know who is arguing in front of them: a Supreme Court justice’s husband, just one wrinkle in the complicated judicial ethics/spousal debate.
In 2007, Jane Roberts quit her job as a partner at Pillsbury Winthrop Shaw Pittman to become a legal recruiter—a headhunter for law firms. John Roberts became chief justice in 2005. The other Roberts in now managing partner at the Washington, D.C., office of Macrae, a firm which exists for the purpose of placing high-powered attorneys with high-powered firms. “Macrae knows law firms,” their website boasts. “Their practices. Their geographic markets. Their cultures. Our passion built an inclusive transatlantic network to identify optimal affinities.”
It’s a lucrative business. Politico reports that “A single placement of a superstar lawyer can yield $500,000 or more for the firm.” A superstar lawyer and a high-powered law firm can only be helped by having that connection made by someone in such proximity to real power. The guy who hired Jane Roberts for her previous job admitted it freely, telling Politico that they wanted the benefits of having the wife of the chief on their staff because “her network is his network and vice versa.”
Robert does list the name of her company on his disclosures, but not the lawyers and the firms she’s worked with, “even though her clients include firms that have done Supreme Court work, according to multiple people with knowledge of the arrangements with those firms,” Politico found in its investigation of Supreme spouses and ethical conflicts.
Politico contacted both Barrett’s and Roberts’ firms, and heard back from a Supreme Court spokesperson in the case of Barrett: “Justice Barrett complies with the Ethics in Government Act in filing financial disclosure reports.” Which is the crux of the problem: She’s complying with the Swiss cheese of judicial ethics requirements, and taking full advantage of all the holes.
Pushed further on the broader question of disclosures by justices of their spouses work, the spokesperson pointed to a statement the court issued in 1993, rejecting the idea that there could be any kind of conflict of interest for a justice in a spouse’s work.
“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. “Even one unnecessary recusal impairs the functioning of the court.”
That was back when 80% of the population had at least some confidence in the Supreme Court, and 47% had a great deal/quite a lot of confidence in it. Now 68% express some degree of confidence, but just 25% say a great deal or quite a lot, and 30% of people now have very little confidence in it. That might be because the modern Supreme Court has done little to show that it’s anything but a partisan political entity intent on imposing its out-of-the-mainstream will on the American people.
The arrogance the court showed in 1993 is still on display today. Earlier this year, Barrett participated in an interview with Fred Ryan, former Politico chief executive officer and current publisher of The Washington Post. He asked about the potential for conflict with her husband’s work, and Barrett said that it wasn’t the court that had to change, but public expectations.
“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. Asked about whether the court should adopt some guidelines to address the problem of spousal conflicts, she blew the question off. “I don’t think most of the spouses would be very happy about those guidelines,” she answered. “Certainly when I try to give my husband guidelines about what to do and not to do in the house even that doesn’t go over very well.”
That kind of arrogance and untouchability makes trusting the justices to do the right thing difficult. As does the work of the people they share their personal lives—and finances—with. Sen. Sheldon Whitehouse (D-RI) puts it succinctly: “The ethical rot at the court continues to spread, and public faith in the court erodes along with it.”
“The questions about financial conflicts of interest are one area of concern among many. There’s also the flood of dark-money influence bearing down on the court, from the nameless donors behind judicial selection to the orchestrated flotillas of anonymous amici curiae lobbying the justices to the spate of partisan decisions handing wins to corporations and big donor interests,” Whitehouse said.
After the last term of absolutely trash decisions out of the court (with the next term promising more of the same), the other two branches of government need to get serious about fixing it. That means imposing a code of ethics and expanding the court.
Good judges are more important now than ever. In some states, judges are on the ballot this November. Tune in to The Downballot to listen to Justice Richard Bernstein talk about what being on the Michigan Supreme Court has been like, and how his re-election campaign is shaping up.
I’m a journalist who specializes in investigative reporting and writing. I have written for the New York Times and other publications.