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Judicial Spouses Shouldn't Be Able to Hide Lucrative Contracts and Clients

Fix the Court has joined CREW, Free Law Project and POGO on a letter to congressional leaders requesting that lawmakers close a loophole in judicial financial disclosures related to spousal income.

Currently, federal judges and justices merely need to list the name of their spouse’s employer and what type of income they’ve received (e.g., “salary”) in Section IIIB of their annual reports.

But that means a judicial spouse could earn untold sums, via legal or consulting work, from entities that have cases before their husband or wife, and the public would be none the wiser, so long as the entities paid their employer and not the spouse directly.

The groups’ suggestion for a fix is simple: an amendment to the Ethics in Government Act that would require the disclosure of any entity that’s paid a judicial spouse or their employer $5,000 or more for the legal, consulting or related work the spouse performed during the reporting year.

See the groups’ letter to Congress with legislative language here.

“This type of proactive disclosure is intended to accomplish two things,” FTC executive director Gabe Roth said. “First, it will compel judges and justices to be more careful about potential conflicts. Second, it will ensure the public has a better understanding of the ethical considerations jurists make when deciding whether to participate in cases. Both outcomes can build public faith in the judiciary at this critical juncture.”

For example, Walmart is a client of Southbank Legal, where Jesse Barrett is a partner. If Walmart pays the firm $5,000 or more for Barrett’s time over the course of a year, then Justice Barrett under the proposed language would be required to list Walmart in Part IIIB on that year’s disclosure.

That doesn’t mean Justice Barrett must recuse in every Walmart case and petition, though. The recusal statute still applies, and so does the justices’ 1993 policy that urges recusal when a judicial spouse is lead counsel in a case before the Court or participates in a profit-sharing agreement related to certain client work.

In other words, disqualification would still be determined on a case-by-case basis, but under the proposed rule, the public would have a better sense if a certain entity or entities were responsible for the bulk of a spouse’s annual income.

The groups’ letter comes as reporting suggests judicial influence campaigns are extant, and these concerns are no doubt more acute in the lower courts, which, including senior judges, comprise about 1,400 jurists.

Besides Jesse Barrett, the proposal might impact three other SCOTUS spouses.

FTC revealed exclusively last month that Justice Jackson omitted from previous years’ disclosures the “self-employed consulting income that [Patrick Jackson] periodically receives from consulting on medical malpractice cases,” though it’s unknown if such work has continued since Jackson joined SCOTUS. Jane Roberts is managing partner at legal recruiting firm Macrae, where she “advises high-profile law firm partners and […] senior government attorneys.” And Ginni Thomas is president of Liberty Consulting.

Though Ginni’s work is well-known, what’s not known publicly is if someone was paying her for her efforts to subvert the 2020 election results. (Justice Thomas did not recuse from any 2020 election cases, nor did he step aside from either petition related to the work of the Jan. 6 Committee.)

FTC since its 2014 founding has highlighted the potential conflicts created by the work of judicial spouses, like Marty Ginsburg, and other relatives, like Gene Scalia.

Now that the disclosures of all federal judges, as well as details of their stock transactions, are to be posted online in a searchable database as soon as next month thanks to a bipartisan law passed in the spring, transparency groups are looking to Congress to fill in other gaps.

Last week Roth wrote an op-ed calling on Congress in a single bill to combine the much-needed security improvements for judges and justices with a few provisions on transparency, namely making federal jurists file the same contemporaneous gift and travel reports that members of Congress must file.

“Simply because judicial ethics rules have been lax for decades does not mean such permissiveness should persist,” Roth said.

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