In re Mrs. Chief Justice

The wife of the Chief’s career is the latest fodder for the Democrats in their war on the high court.

AP Photo/Alex Brandon
Chief Justice Roberts and his wife Jane Roberts arrive for a State Dinner at the White House, April 24, 2018. AP Photo/Alex Brandon

It’s not easy being a Supreme Court spouse these days. Justice Clarence Thomas’s wife Virginia has been hounded by the January 6 committee regarding her activities — and text messages — on that day. Journalists portray her entire career as one large conflict of interest. Now, it is Jane Sullivan Roberts’s turn in the metaphorical dock. The career of the Chief’s wife is the latest fodder for the Democrats in their war on the high court — and the most ridiculous. 

The complaint comes from a former colleague of Mrs. Roberts, one Kendal Price. According to the New York Times, Mr. Price sent records to both the Justice Department and Congress indicating that Mrs. Roberts — a legal recruiter — has been paid millions for placing attorneys at firms, with some of them arguing before her husband’s bench. Litigants, he wrote, “deserve to know if their judges’ households are receiving six-figure payments.” 

Mrs. Roberts was not always a legal recruiter, she told LawDragon. A systems engineer at Bell Laboratories, she went to law school and eventually made partner at Pillsbury. In this, she followed a family tradition; her grandfather was the longest serving law clerk in Ireland’s history, toiling for 61 years. When her husband acceded to the high court, she noted it “was awkward to be practicing law in the firm — not unethical, not prohibited, but still awkward.”

That awkwardness led her to recruiting, where she has thrived. The Committee of Codes of Conduct blesses such an arrangement,  explaining that a “judge whose spouse owned and operated a legal or executive recruitment business need not recuse merely because a law firm appearing before the judge engaged the judge’s spouse, either currently or in the past.” Mrs. Roberts explains that she “handles potential conflicts on a case-by-case basis.” 

We spoke to the executive director of Fix the Court, Gabriel Roth, who is at the forefront of urging ethics reform. Mr. Roth noted that Mrs. Roberts has done a “respectable job of separating her life from her husband’s” and that overlap is inevitable for such a “high powered couple” in the “tight knit” world of Supreme Court litigation. In other words, Mrs. Roberts behavior appears not only innocent, but exemplary.

In the 1972 case of Laird v. Tatum, Justice William Rehnquist articulated the “duty to sit,” elaborated  in a 2004 denial of a recusal motion penned by Justice Antonin Scalia. The upshot is that while recusal law mandates stepping aside in the presence of a conflict of interest, in the absence of such a disqualification, judges and justices have the obligation to show up for work unless their “impartiality might reasonably be questioned” by personal or fiduciary bias.

While the notion of a binding rule of ethics for the high court has been bandied about — most shockingly by Justice Elena Kagan — we are inclined to see in this move on Mrs. Roberts less a push for a fair minded framework than another attempt to bully a court for its rightward turn. House Democrats have toyed with impeaching Justice Thomas for his wife’s activity, and we wouldn’t be surprised if it is now the Chief on whom they wheel. 

On this head, we have reported on Chief Justice Roberts’s recommended reading of the 1924 Canons of Judicial Ethics, which note that “partisan demands, public clamor or considerations of personal popularity or notoriety” have no place in relation to recusal. They amount to so much “unjust criticism.” When efforts to persuade justices turn to maneuvers to remove them, the duty to sit reminds that recusal carries its own costs. 

The New York Sun

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