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Didn't We Just Do This? Judicial Spouses Shouldn't Hide Lucrative Contracts and Clients

It’s déjà vu at Fix the Court, where in October we co-wrote a letter to lawmakers with POGO, Free Law Project and CREW saying judges and justices should be required to disclose the names of any entity from which a spouse has earned $5,000-plus for legal, consulting or related work in a given year.

The shorter version of my statement that follows: judicial spouses should of course have whatever jobs they want. But the public should have more information as to whether those jobs might pose a conflict to their wives’ or husbands’ judicial work.

On one hand, I agree with UVA Law Prof. Amanda Frost‘s statement to the Times, that it’s hard to imagine how Jane Roberts’ work, based on the information we have, might “corrupt” her husband’s decisions. And the idea that the Chief Justice should have been recused in the 27 cases WilmerHale attorneys argued at the Supreme Court between 2013 and 2017, simply because Jane worked with the firm then, is preposterous.

On the other hand, if, say, Jane received a giant bonus by placing three attorneys in the general counsel’s office at Company X, and two years later Company X had a case at SCOTUS and was represented by those same three attorneys, then of course the Chief Justice should’ve recused, since Jane’s work with Company X increased the couple’s net worth.

But under current law, Jane’s relationship to Company X would never be disclosed. Instead, the public deserves to see (some of) the receipts to have a fuller understanding of the potential conflicts the justices confront.

All of that leads to this: we don’t know if ethics rules were violated here because there effectively are no rules.

What we need is for the Supreme Court to draft and adopt a comprehensive ethics code comprising a uniform set of principles that the justices can look to for guidance and that can set reasonable expectations for the justices’ conduct on and off the bench.

We need more disclosure from judges and justices about spousal engagements that result in major paydays. And we need a neutral third party at the Court whose job it is to help the justices navigate their ethical responsibilities.

That, as the Times reported, the Chief Justice and Jane Roberts “consulted” a lower-court ethics code and a decade-old advisory opinion written by lower court judges is not adequate. Reviewing SCOTUS-specific ethical canons and speaking with an in-house ombudsman — if only both had existed — would be the right and respectable course of action.

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