By Gabe Roth, FTC executive director

Below I try to answer the question: what’s the potential ethics exposure for each justice as the Trump lawsuits head to SCOTUS?

With more than 200 lawsuits filed against Trump administration directives since Jan. 20, and with many of them headed to the justices’ desks or already there, it’s worth considering the extent to which the nine have financial holdings, friendships, side jobs or other experiences that might require them to recuse should more of these cases reach the Supreme Court.

Here I go justice by justice and rate the likelihood they’d have to step aside in a current or future Trump case. Given the rapidly changing litigation space, this is subject to change, and I expect to periodically update this document at FixTheCourt.com.

Chief Justice Roberts: MEDIUM EXPOSURE

Attorneys placed by Jane Roberts: Roberts’ wife Jane is a partner at the legal recruiting firm Macrae, where she’s placed top attorneys at high-level law firms across the country, netting her as much as a few hundred thousand dollars for top placements. Firms she’s worked with include WilmerHale, a firm the Trump administration has targeted for retribution via EO, and Hogan Lovells, a firm attacked by the EEOC for its DEI practices (p. 81). WilmerHale, along with Jenner & Block and Perkins Coie, is suing the Trump administration, though it’s unknown if Jane has placed attorneys at the latter two firms.

Let’s assume the WilmerHale case reaches SCOTUS. Would the Chief Justice have to recuse? My view is it depends. If, within the last six years, Jane placed an attorney at WilmerHale and received compensation from the firm for that placement, then yes. (Why six years? That’s the length of time the judiciary retains the justices’ disclosures under federal law and is otherwise a reasonable amount of time for this type of conflict to exist and then recede.)

Lawsuits in which WilmerHale attorneys are representing the plaintiffs, like this one seeking to reinstate fired IGs, should not, in my view, trigger recusal unless one of the attorneys listed in the filings was placed by Jane within the last six years (almost certainly not the case here). The firm could, of course, also choose not to assign such attorneys to cases likely to come before SCOTUS.

Attorneys Jane might place in the near future: It’s also possible that Jane will work with attorneys who’ve left government service over their refusal to go along with Trump administration directives. According to Macrae’s website, the firm has “placed nearly 25% of government attorneys who transitioned into law firm partner and counsel roles” since 2020. Consider the DOJ pardon attorney who quit after she was told to reinstate Mel Gibson’s gun rights or the one recently placed on leave (technically still at DOJ) for admitting a Maryland man was mistakenly deported to El Salvador. Jane may also place attorney(s) who’ve left their jobs over their firm’s decision to cooperate with the administration. If these attorneys are Jane’s clients and she makes a bonus from placing them, the same six-year standard should apply, and Roberts should recuse from SCOTUS cases concerning these attorneys, or cases brought by these attorneys, during that period.

The Smithsonian: Roberts is a member of the Smithsonian Board of Regents by statute, 20 U.S.C. §42(a). Since becoming Chief Justice in 2005, he has recused from one of two petitions (non-recusal in 2012; recusal in 2024) in which the Smithsonian was a named party. In the 2012 petition, the Smithsonian waived the right to respond, and the petition was quickly dismissed, so although Roberts should’ve recused, it’s likely his clerk in the cert. pool simply didn’t flag the issue due to the waiver. In any event, the Mar. 27 executive order instructing the Smithsonian to eliminate “improper, divisive, or anti-American ideology” may generate litigation — say, from an individual or institution that loaned the museum items such as a Black Lives Matter poster or a trans rights t-shirt only to have them removed. If the Smithsonian is a named party, then Roberts would have to recuse. (A better solution recently proposed to me by a law school dean: rewrite the law so the Chief Justice is no longer on the Board.)

Justice Thomas: LOW EXPOSURE

Library of Congress: Thomas’ wife Ginni sits on the Library of Congress’ Trust Fund Board. Although there is currently no litigation related to the Library of Congress, the administration recently defunded the Institute of Museum and Library Services and gutted NARA, so it’s not out of the question. Given Ginni’s position, Thomas should recuse from any litigation in which the Library of Congress is a party.

Friendships: Thomas’ ties to real estate magnate Harlan Crow are well-documented. Crow sits on the board of the Southwestern Medical Foundation, which receives tens of millions of dollars in NIH grants annually and is headquartered at Old Parkland, the Dallas business campus owned by Crow Holdings. Even if NIH cuts grants to the foundation, the connection is too attenuated in my view to require recusal in cases involving NIH funding.

Justice Alito: LOW TO MEDIUM EXPOSURE

Stock holdings: Alito owns shares in several companies that are likely to be hit hard by Trump administration tariffs, such as 3M, Boeing, Caterpillar, and Procter & Gamble.. Should any of the companies in which Alito holds stock file suit over the tariffs (as a Fla. paper company already has), then Alito should recuse — and very likely would be based on past experience.

Teaching: Though Alito did not include any income from teaching on his most recent (2023) disclosure, he has taught in the past at Duke Law School and Regent University School of Law, though neither of which is likely to be targeted by the Trump administration.

Justice Sotomayor: VERY LOW EXPOSURE

Speaking engagements: Sotomayor frequently gives public talks, and she may be asked about Trump-related litigation during these appearances. That said, it’s unlikely she’d comment in a way that would imperil the public perception of her impartiality. We all learned a lot from Justice Ginsburg’s infamous 2016 remarks.

Justice Kagan: VERY LOW EXPOSURE

Nothing to report at present

Justice Gorsuch: LOW EXPOSURE

Guantanamo: Gorsuch served in the Justice Department from 2005 to 2006, at a time when war on terror detainees were sent to the U.S. prison at Guantanamo Bay, Cuba. Thanks to documents uncovered at the time of his confirmation, we know that Gorsuch was sanguine about the prison’s existence and he even recommended that federal judges come and see it. “A visit, or even just the offer of a visit,” Gorsuch wrote, “might help dispel myths and build confidence in our representations to the Court about conditions and detainee treatment.” Even so, his views on the legality of the prison cannot necessarily be imputed from those statements, since he was representing the Bush administration at that time. His having visited the prison himself and working on cases involving prisoners there is also too attenuated as to require a recusal should any of the cases involving the U.S. newly sending prisoners there reach SCOTUS.

Friendships: Gorsuch recently recused himself in Seven County Coalition v. Eagle County, a case argued in December about the extent to which federal agencies must evaluate the environmental impacts of federal actions. Though Gorsuch did not offer an explanation for stepping aside, the general belief is that the recusal was due to his longstanding ties to Phil Anschutz, whose energy exploration company could stand to benefit from the case. The Anschutz Exploration Corporation also filed an amicus brief supporting the petitioners. Though Anschutz holds broad business interests, none appears directly tied to administration policies that would result in litigation.

Teaching: Gorsuch teaches in an annual summer program run by George Mason University’s Scalia Law School, but GMU is unlikely to be targeted by the Trump administration.

Justice Kavanaugh: LOW EXPOSURE

Friendships: Kavanaugh is close with Judge Jeb Boasberg of the D.C. District. Boasberg was his former Yale Law roommate, and the two for many years went on vacation together. That said, this kind of personal friendship, even with a district judge, does not usually trigger recusal. Even if, for example, Boasberg found a DOJ attorney in contempt of court for misrepresenting facts, as he may do as soon as next week, and if the contemnor appealed at the end of the litigation, that finding is more about Boasberg the judge than Boasberg the individual, and Kavanaugh wouldn’t need to recuse if such an appeal reached SCOTUS.

Teaching Kavanaugh has been teaching at Notre Dame Law on and off for several years, but the university is unlikely to be targeted by the Trump administration.

Justice Barrett: LOW EXPOSURE

Book tour: Barrett has a book coming out in September, and during the book tour that is expected to follow, she will likely be asked questions about her views on Trump-related litigation. As with Sotomayor, I’d be shocked if she said anything that risks her impartiality.

Friendships: Barrett’s most recent merits-stage recusal, in the consolidated cases of Oklahoma Charter School Board v. Drummond and St. Isidore v. Drummond, was possibly due to her close friend Nicole Garnett’s work on the latter case Garnett is active as an attorney and a professor, but she is not representing any party that is suing the administration.

Teaching: Barrett has been teaching at Notre Dame Law during her SCOTUS tenure, and beforehand too, but the university is unlikely to be targeted by the Trump administration.

Justice Jackson: LOW EXPOSURE

Harvard: Jackson served on the Harvard Board of Overseers from 2016 to 2022 and on account of that position recused herself in Students for Fair Admissions v. Harvard, decided in June 2023. (Whether she actually recused, given her participation in the companion case SFFA v. UNC, is a question for another time.) As of today, the only Trump lawsuit in which Harvard appears to be involved is Schiff v. OPM, which concerns HHS censorship of two Harvard Medical School professors whose research included “forbidden” LGBT-related terms. Should this case reach SCOTUS, Jackson would not need to recuse since the doctors are the party, not the university. Even if litigation arises over the $8 billion in Harvard-affiliated research grants that were recently placed “under review” by the administration, I don’t believe that Jackson would need to recuse, since all the policies and events the administration is supposedly reacting to occurred after her tenure on the Board ended. (Top universities have absolutely been awful to their Jewish students in a thousand ways since Oct. 7, 2023, but the administration is looking for an excuse to meddle, and if it wasn’t anti-Semitism, it’d be DEI or CRT or something else.)