People For the American Way

More Questions About Supreme Court Ethics

News and Analysis

There are more headlines highlighting the freewheeling approach to judicial ethics taken by some Supreme Court justices. This latest revelation involves the question of whether Chief Justice John Roberts should be recusing himself from cases where a party is represented by a law firm that his wife has had a business relationship with – specifically, as a recruiter.

According to the New York Times, after the chief justice was confirmed in 2005, Jane Sullivan Roberts “gave up her career as a law firm partner to become a high-end legal recruiter in an effort to alleviate potential conflicts of interest.” Now a former colleague of hers, Kendal Price, “has provided records to the Justice Department and Congress indicating Mrs. Roberts has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court.”

Amazingly, the ethics rules that govern every other federal judge are not binding on Supreme Court justices. In this case, Roberts, through a Court spokeswoman, said that he had consulted ethical rules applicable to all other federal judges.

Per the Times:

In a statement, a spokeswoman for the Supreme Court, Patricia McCabe, said that all the justices were “attentive to ethical constraints” and complied with financial disclosure laws. The chief justice and his wife had also consulted the code of conduct for federal judges, Ms. McCabe said, including a 2009 advisory opinion that a judge “need not recuse merely because” his or her spouse had worked as a recruiter for a law firm with issues before the court.

That, however, only gives half the story. In fact, the same advisory opinion (Committee on Codes of Conduct Advisory Opinion No. 107) says that sometimes a spouse’s recruitment activity does trigger a recusal requirement. True, if the spouse only recruited one lawyer to that firm, the judge generally wouldn’t need to recuse themselves. But if the spouse regularly recruits for that firm, or has done multiple high-level recruitments recently, then the judge would have to recuse.

Why wouldn’t the chief justice (speaking through the Court spokesperson) mention this case-by-case balancing? Why direct the Court to release a statement seemingly designed to obscure the potential for an ethical conflict?

Even if the chief justice has not violated any ethical rules that would be applicable to any lower court judge, his choice to mislead the public on the very possibility of a conflict seriously undercuts his credibility.

This isn’t the first time we’ve seen John Roberts try to fool the public on ethics issues. It comes just a couple of weeks after the Court’s efforts at misdirection regarding the investigation of the leak of the draft opinion in Dobbs. That statement went out of its way to make the investigation seem thorough. Yet it did not say whether the justices themselves were questioned. Only after that initial release did we learn that investigators did indeed question the justices, but did not require them to respond under oath as their clerks and Court employees were.

Congress needs to step in and ensure that there are binding ethics rules that apply to Supreme Court justices. That will be an important first step toward getting a new Court majority that respects the rule of law, democracy, and the rights of all the people, not just the wealthy and politically favored.



ethics, John Roberts, Supreme Court