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Want To Know Who SCOTUS Spouses Work For? TOO BAD!

About that growing distrust the public has in the Supreme Court...

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Supreme Court Holds Investiture Ceremony For Associate Justice Amy Coney Barrett

Amy Coney Barrett and Jesse Barrett in front of the Supreme Court (Photo by Chip Somodevilla/Getty Images)

Supreme Court ethics problems — they’re not just for Clarence Thomas anymore!

According to a report from Politico, Supreme Court justices would really rather the public *not* know exactly how their spouses make money. Yes, that’s even if they are attorneys and may EASILY advise clients on matters before he Court. Wheeeee!

Which Supreme Court spouses are we talking about? So many! Politico points out Jesse Barrett, Ginni Thomas, and Jane Roberts as particularly bad offenders.

So let’s start with Amy Coney Barrett’s husband, Jesse Barrett. He’s head of the D.C. office of a law firm, SouthBank Legal. The firm, with less than 20 lawyers, according to its website, works on “white-collar criminal defense, internal investigations, and complex commercial litigation” with clients across “virtually every industry” that include “over 25 Fortune 500 companies and over 15 in the Fortune 100.”

Hmmm, wonder if any of those very high powered clients Jesse Barrett works on behalf of have business before the Supreme Court? Tough luck! Amy Coney Barrett does not include any of that information in any disclosure. What’s more, she redacted the firm name from disclosure forms — despite the fact that Jesse Barrett’s job is well known.

In the case of Jesse Barrett, even the name of his firm is unavailable on his wife’s most recent disclosure statement. Information about spouses’ employment is required on the forms, but justices may ask to redact it for certain reasons. Despite Barrett’s profile appearing prominently on the front of his firm’s website — and its touting of his employment in a press release — the name SouthBank Legal was redacted on Justice Barrett’s public financial disclosure filing for 2021.

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When questioned about this wild lack of transparency, ACB got snippy and tried to pretend like she’s a feminist:

In an interview at the Ronald Reagan Presidential Library, Fred Ryan, former POLITICO chief executive officer and current publisher of The Washington Post, questioned Barrett on the challenges of balancing the couple’s careers. Barrett maintained that they were careful to avoid conflicts but argued that society’s expectations must change.

“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.

Well, this is some horseshit. Yes, it’s great that both Barretts have work outside the house they find fulfilling. But it is also VERY reasonable for the public to want to know if ACB is hearing cases in which the other adult member of her household has a potential financial interest.

But even the seemingly benign notion of rules for transparency resulted in ACB lashing out with an unfunny joke:

“I don’t think most of the spouses would be very happy about those guidelines,” she quipped. “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.”

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A statement from a Court spokesperson does little to assure the public ACB is not hearing cases of clients of her husband’s firm:

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.

But what of those other five cases a grateful client gives to the firm as a result of that positive result? Well, those would be fair game. And if you’re so great about making sure your family has no financial interest in the cases you hear as a Supreme Court justice WHY NOT provide the public with a list of clients? If there’s no impropriety to see, transparency will only PROVE that.

This is ground we — as a society — have been over, repeatedly, with Clarence and Ginni Thomas. And as an Above the Law reader you might even be tired of listening to the cavalcade of questionable ethics on display with that family. Clarence Thomas has adjudicated all manner of controversies that intersect with his wife’s work as a political operative. For example, she led a grassroots movement in support of Trump’s travel ban, worked for right-wing think tanks, and led efforts to defeat the Affordable Care Act. Ginni’s far right political work even landed her on the radar of the January 6th Committee, and Clarence Thomas still heard a case about the January 6th committee — and shockingly! — he was the lone dissent when the Court rejected Trump’s efforts to block the release of presidential records to the committee. Plus Thomas failed to mention ~$700,000 in income for Ginni’s advocacy work on disclosure documents. And yet the Supreme Court continues to operate as the only court without a real ethical code. Just appalling.

The Politico report also points out that John Roberts’s wife, Jane Roberts, has connections to the legal industry, as a legal recruiter for Macrae, and does not publish a list of clients she works on behalf of.

But a POLITICO investigation shows that potential conflicts involving justices’ spouses extend beyond the Thomases. Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention. But she is a legal head-hunter at the firm Macrae which represents high-powered attorneys in their efforts to secure positions in wealthy firms, typically for a percentage of the first-year salary she secures for her clients. A single placement of a superstar lawyer can yield $500,000 or more for the firm.

This strikes me as a lot less big of a deal. Yes, Jane Roberts’s recruiting career is undoubtedly enhanced by her husband’s legal connections, but I fail to see how that impacts the Court’s work. She (or Macrae) likely have firm clients on both sides of any number of matters but the result of the case (i.e. her husband’s work) has no impact on whether she places a partner at any given firm. Legal recruiting is a very specific job and, regardless of who the clients are, has a very low probability of overlap with Court business.

Of the lack of transparency, New York University Law Professor Stephen Gillers, said, “We don’t know who that is and we don’t know the amounts of money. That’s a legitimate concern.” He continued:

“Since a justice who owns 10 shares of stock in a party has to recuse even though the effect would be negligible on their finances, if that’s true, why should a justice’s spouse not have to reveal a very large payment from a client that could substantially improve a justice’s quality of life?”

In the year 2022 the Supreme Court is a damn mess. The Court’s approval rating is in the toilet and justices are having very pubic squabbles about the Court’s legitimacy. This morass only fuels the growing distrust the public has in the institution.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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