Growing scrutiny of the spouses of Supreme Court justices is now raising calls for more stringent ethics rules governing the judges and their families.
The latest example of a judicial spouse winning unwanted attention is Jane Roberts, who is married to Chief Justice John Roberts.
A former colleague targeted Roberts in an ethics complaint that surfaced late last month, saying her legal recruiting work involved firms with business before the court and that the chief justice did not properly recuse himself.
Opinions in the legal world vary over the Roberts affair, with some experts downplaying any meaningful ethics issues.
More serious, said a number of experts interviewed for this story, are the conflicts of interest for Justice Clarence Thomas given his wife Ginni Thomas’s support for efforts to overturn the 2020 election.
Still, the Roberts episode has emerged as the latest sore point for the court as an increasingly untrusting public demands more accountability.
Sen. Elizabeth Warren (D-Mass.) described the reports about Roberts’s wife as “Example #4,394” why lawmakers should pass a requirement for justices to follow a binding code of ethics. Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) also signaled support after receiving the complaint.
Efforts by the left to implement a binding code of ethics for justices — like the one in place for lower federal courts — gained steam this week after the American Bar Association (ABA) voted to support it.
“This will be the first time the legal profession has demanded the U.S. Supreme Court adopt a binding code of ethics,” Tom Fitzpatrick, who helped draft the resolution, said in a statement. “The lack thereof jeopardizes the legitimacy of the Supreme Court and the judicial system at large.”
The ABA and other supporters argue their calls aren’t a response to any singular incident and instead speak to a broader pattern of unaccountability on the high court.
Some proponents point back to 2004, when Justice Antonin Scalia rebuffed calls to recuse himself from a case involving Vice President Dick Cheney following the duo’s duck-hunting trip, which came three weeks after the justices agreed to hear the case.
Others note various lapses in justices’ financial disclosures, trips to speak with ideological groups and how Justice Ruth Bader Ginsburg’s husband, Marty Ginsburg, was a tax lawyer at a firm involved in multiple Supreme Court cases.
“There’s no enforcement mechanism whatsoever, and in fact the Code of Judicial Conduct doesn’t even apply to the justices,” said Vin Bonventre, an Albany Law School professor and former Supreme Court judicial fellow.
Although the criticisms have involved justices appointed by both parties, the left in particular has stepped up pressure in recent years as the court’s conservative majority sparked new, progressive watchdog groups.
They condemned the extraordinary leak of the court’s draft majority opinion overturning federal abortion protections and Ginni Thomas pressing state lawmakers to help overturn former President Trump’s election loss.
Their skepticism only grew after reports emerged of a major operation by the religious right to schmooze with the justices and gain influence. A former anti-abortion activist accused Justice Samuel Alito and his wife of leaking a high-profile contraception decision in 2014 to a couple involved in the effort, but Alito has denied the claim.
Ethics experts expressed various levels of concern about the Roberts accusation but generally agreed the episode isn’t comparable to some other recent controversies.
Recusal decisions ultimately rest with the justices, but an often-cited Judicial Conference ethics opinion written in 2009 states that judges do not ordinarily need to recuse themselves when their spouse is a service provider to a firm.
“While I suppose one could spin out an extreme scenario where there might possibly be some influence being used in terms of hiring her to get to him, I think it’s very, very unlikely, and I think they’ve behaved as they should,” Amanda Frost, a University of Virginia law professor, said of Roberts.
The chief justice for much of his career on the Supreme Court has made an effort to protect the court’s image, and to keep it from being seen as too overtly political.
Those efforts were punctured by a series of decisions, including the Senate GOP’s refusal to consider President Obama’s nominee to replace Scalia after the conservative justice died in early 2016 and its rush to quickly confirm a Trump nominee to replace Ginsburg after the liberal stalwart died weeks before the 2020 presidential election.
The three Trump-appointed justices last summer voted to overturn the Roe v. Wade decision, making abortion illegal in a number of states.
There is growing public concern that the high court is deciding cases on politics, rather than law, a trend that has led the court’s approval to near historic lows.
“I don’t think the public distinguishes among events that undermine the court’s reputation,” said New York University law professor Stephen Gillers. “I think it’s just one thing after another. Whatever the thing happens to be just adds to the negative impression.”
The proposal from Durbin for a binding code of conduct isn’t the first time Congress has looked to wade into judicial ethics.
After a Wall Street Journal investigation in September 2021 identified 131 federal judges who heard cases where they had financial interest, President Biden signed a bipartisan bill requiring prompt reporting of justices and other federal judges’ major stock transactions.
If lawmakers go further, however, they could run into separation of powers issues or the balking of justices who desire an insular approach.
In his 2011 year-end report, Roberts questioned the constitutionality of certain legislative remedies. After the Wall Street Journal investigation, Roberts indicated the Judicial Conference was “up to the task” of solving the issues.
For the investigation into the abortion opinion leak, Roberts delegated the task to the court’s marshal, who is answerable to the justices themselves. The investigation has not conclusively identified the leaker.
“The court needs an intervention,” Gillers said. “The court needs to get real and worried about its reputation.”