Chief Justice in the muck

Chief Justice Roberts has reason not to want to talk to Congress about court ethics.

Last week, Sen. Dick Durbin, chair of the Senate Judiciary Committee, invited Roberts to "restore confidence in the Court's ethical standards" by coming on the Hill and giving public testimony. Roberts declined.

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Two years after John Roberts' confirmation as the Supreme Court's chief justice in 2005, his wife, Jane Sullivan Roberts, made a pivot. After a long and distinguished career as a lawyer, she refashioned herself as a legal recruiter, a matchmaker who pairs job-hunting lawyers up with corporations and firms.

Roberts told a friend that the change was motivated by a desire to avoid the appearance of conflicts of interest, given that her husband was now the highest-ranking judge in the country.

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[F]or the years 2007 to 2014 [...] Jane Roberts generated a whopping $10.3 million in commissions, paid out by corporations and law firms for placing high-dollar lawyers with them.

That eye-popping figure comes from records in a whistleblower complaint filed by a disgruntled former colleague of Roberts [Kendal B. Price], who says that as the spouse of the most powerful judge in the United States, the income she earns from law firms who practice before the Court should be subject to public scrutiny.

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Price's disclosures, which were filed under federal whistleblower-protection laws and are now in the hands of the House and Senate Judiciary committees, add to the mounting questions about how Supreme Court justices and their families financially benefit from their special status.

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"I believe that at least some of her remarkable success as a recruiter has come because of her spouse's position."

  Business Insider

He's just jealous, right Jane?

Mark Jungers, another one of Jane Roberts' former colleagues, said that Jane was smart, talented, and good at her job. "To my knowledge," he told Insider, "friends of John were mostly friends of Jane, and while it certainly did not harm her access to top people to have John as her spouse, I never saw her 'use' that inappropriately. In fact, I would say that Jane was always very sensitive to the privacy of her family and when she could drop the name or make certain calls, she didn't."

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[A] spokesperson [for the Supreme Court] told the Times that the Robertses had complied with the code of conduct for federal judges, citing an advisory opinion finding 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."

Of course not. Those justices are above being influenced. They should never be questioned.  They're practically Gods.

(Other advisory opinions have held that when a judge's spouse is actively recruiting for a firm appearing before that judge, or when a spouse has personally done "high level" recruitment work that generated "substantial fees," recusal would be appropriate.)

But they have no mandatory rules on recusal. Or ethics for that matter.

"What's the public confidence in a system when the firms which are appearing before the court are making decisions that are to the financial benefit of the chief justice?"

How dare you question them.

Only 25 percent of Americans say they have "a great deal" of confidence in the court, the lowest since Gallup started asking the question in 1974. The court has been rocked in recent weeks by a series of revelations about the behavior of sitting justices, including transactions and relationships that could lead to discipline in almost any other professional context.

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ProPublica revealed that Clarence Thomas accepted lavish, undisclosed gifts of travel and had engaged in real estate transactions with Harlan Crow, a Dallas real-estate developer and GOP donor. That news prompted the discovery of errors in Thomas's financial disclosure forms, which he agreed to revise. This isn't the first time that Thomas has had difficulty with filing complete and accurate financial disclosure forms. In 2011, Thomas amended 13 years of forms, some of which had wrongly claimed that his wife Ginni had no outside income, when in fact she'd been paid more than half a million dollars by the conservative Heritage Foundation.

Then came the news that shortly after his confirmation to the Supreme Court, Neil Gorsuch had sold his share of a vacation property to Big Law CEO. He reported the transaction on his disclosure forms, but left the name of the buyer blank.

These disclosures came on the heels of yet another report in November that an evangelical activist orchestrated an influence campaign targeting Justice Samuel A. Alito Jr. by mobilizing a network of well-heeled conservative donors to contribute to the Supreme Court Historical Society. One of those donors, the activist claims, received an early heads up about a coming decision in the Hobby Lobby case.

Oh, hell yes. I had forgotten about Alito's stench.

In a statement to Insider, Durbin suggested that he was close to giving up on the prospect that the Supreme Court was capable of policing itself. "The need for Supreme Court ethics reform is clear," he said. "And since it appears that the Court will not take adequate action, Congress must."

Do it.

Roberts said she specialized in placing current and former government officials at law firms, describing the mechanics of her job in market-oriented terms.

Jane is the matron of the revolving door.

While there is no evidence that any of Roberts' placements — as opposed to the firms that hire them — have argued before the Supreme Court, a legal consultant told Politico that Roberts' "access to people is heavily influenced by her last name."

Hunter Biden's laptop!

Gershman's memo cites one case, Dutra Group v. Batterton, in which the Supreme Court overruled a decision that found a WilmerHale client potentially liable for punitive damages. Roberts voted with the majority. "In my opinion, a reasonable person would want to know that the law firm on the other side of a legal dispute had recently paid the judge's household over $350,000," Gershman wrote. "Such a payment might cause a reasonable person to question the judge's impartiality."

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The Supreme Court is not subject to the Freedom of Information Act or the oversight of the Office on Government Ethics. It has no internal ethics committee and no inspector general. In lieu of all these safeguards, there is a document called "Statements of Ethics Principles and Practices," which Roberts provided to Durbin.

Even the bare-bones requirement of an annual financial disclosure form is, in Roberts' view, a voluntary gesture, as "the Court has never addressed whether Congress may impose those requirements on the Supreme Court."

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As with his previous forms, Justice Roberts' most recent financial disclosure gives no indication of how much money his spouse made or which law firms it came from. Nor is there any indication that she earned a commission on placements, only income paid out by "Macrae, Inc. — Attorney Search Consultants – salary."

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A memo written in support of Price's complaint by Bennett Gershman, professor at the Elisabeth Haub School of Law at Pace University who has written books on legal ethics, goes further. "Characterizing Mrs. Roberts' commissions as 'salary' is not merely factually incorrect; it is incorrect as a matter of law," Gershman wrote. "The legal distinction between these terms is clear, undisputed, and legally material. If the Chief Justice's inaccurate financial disclosures were inadvertent, presumably he should file corrected and amended disclosures."

...but hey, do what you want...you will anyway.

UPDATE 04/29/2023:

Congress makes laws. Congress spends money. Congress approves the president’s cabinet and says whether he can appoint a judge or not. Congress structures the judiciary and Congress sets the size of the Supreme Court and the scope of its business.

The upshot of all of this is that when Congress calls, the other branches are supposed to answer — not as a courtesy, but as an affirmation of the rules of the American constitutional order.

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Last week, Congress called the chief justice. In the wake of revelations concerning the friendship between Justice Clarence Thomas and Harlan Crow, a billionaire Republican donor, the chairman of the Senate Judiciary Committee, Senator Dick Durbin of Illinois, invited Roberts to testify at an upcoming hearing on Supreme Court ethics rules.

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“I must respectfully decline your invitation,” Roberts wrote. “Testimony before the Senate Judiciary Committee by the chief justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

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More striking than this evasion is the manner in which Roberts ended his reply. Faced with serious questions about the integrity of the court, he pointed to a nonbinding ethics document that has done almost nothing to prevent these situations from arising in the first place. “In regard to the Court’s approach to ethics matters,” he wrote, “I attached a Statement of Ethics Principles and Practices to which all of the current members of the Supreme Court subscribe.”

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“Separation of powers,” in Roberts’s view, means the court is outside the system of checks and balances that governs the other branches of government. “Judicial independence,” likewise, means neither he nor any other member of the court has any obligation to speak to Congress about their behavior. The court checks, according to Roberts, but cannot be checked.

A number of legal scholars have remarked on the judicial power grab of the past several years, in which courts across the federal judiciary have seized key governing decisions from the legislative and executive branches and disparaged the ability of elected officials to, as Josh Chafetz of Georgetown University Law Center writes, “engage in principled, competent governance.”

As one of the architects of this development in American politics, Roberts is essentially using this letter to make plain to Congress the reality of the situation: I will not speak, and you cannot make me. And he’s right, not because Congress doesn’t have the power, but because it doesn’t have the votes.

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It is not especially dramatic, but this exchange with Chief Justice Roberts over the court, its ethics and its responsibility to the public and its representatives has done more than almost anything else in recent memory to illustrate a key reality of American politics in this moment: that our Supreme Court does not exist in the constitutional order as much as it looms over it, a robed tribunal of self-styled philosopher-kings, accountable to no one but themselves.

  NYT