Justices shield spouses’ work from potential conflict of interest disclosures

A year after Amy Coney Barrett joined the Supreme Court, the boutique Indiana firm SouthBank Legal opened its first-ever Washington office in Penn Quarter, a move the firm hailed in a 2021 press release as an “important milestone.”

The head of the office, Jesse M. Barrett, is the justice’s husband, whose work is described by the firm as “white-collar criminal defense, internal investigations, and complex commercial litigation.”

SouthBank Legal — which lists fewer than 20 lawyers — has boasted clients across “virtually every industry”: automobile manufacturers, global banks, media giants, among others. They have included “over 25 Fortune 500 companies and over 15 in the Fortune 100,” according to the firm’s website.

But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.

Over the past year, Virginia Thomas, known as Ginni, has gotten significant attention for operating a consulting business that reportedly includes conservative activist groups with interest in Supreme Court decisions as clients. Her husband, Justice Clarence Thomas, has chosen not to reveal any of his wife’s clients, let alone how much they contributed to the Thomas family coffers, dating back to when her consulting business was founded.

But a POLITICO investigation shows that potential conflicts involving justices’ spouses extend beyond the Thomases. Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention. But she is a legal head-hunter at the firm Macrae which represents high-powered attorneys in their efforts to secure positions in wealthy firms, typically for a percentage of the first-year salary she secures for her clients. A single placement of a superstar lawyer can yield $500,000 or more for the firm.

Mark Jungers, a former managing partner at Major, Lindsey & Africa, the firm that employed Jane Roberts as a legal recruiter before she moved to Macrae, told POLITICO the firm hired her hoping it would benefit from her being the chief justice’s wife, in part, because “her network is his network and vice versa.”

Roberts lists his wife’s company on his ethics form, but not which lawyers and law firms hire her as a recruiter — even though her clients include firms that have done Supreme Court work, according to multiple people with knowledge of the arrangements with those firms.

The POLITICO investigation found that some spouses of other Supreme Court justices have also had careers of their own, but none currently appear to have the potential to intersect as closely with the court's work as Barrett, Thomas and Roberts. Justices Samuel Alito and Neil Gorsuch reported no non-investment income from their spouses in 2021. Justices Sonia Sotomayor and Elena Kagan are not married. Brett Kavanaugh's wife Ashley Estes Kavanaugh — a former George W. Bush White House aide — reported a salary from her position as town manager of Chevy Chase Village Section 5.

This week, the court is formally welcoming a new justice, Ketanji Brown Jackson. Her husband, Patrick Graves Jackson, currently serves as chief of the general surgery division at MedStar Georgetown University Hospital.

But Jackson noted in a disclosure form filed earlier this year, while serving as a lower-court judge, that she had previously left out “self-employed consulting income that my spouse periodically receives from consulting on medical malpractice cases.”

Like in the cases of Thomas, Barrett and Roberts, the names of his clients were not included in the filing.

Special interests court the justices

As an independent branch of government, the Supreme Court has long been determined to set its own path on ethics, with each justice left to make their own determination on when to recuse themselves from cases with no enforcement mechanism to hold them accountable.

Since 1979, the justices have produced annual disclosure forms that mimic those filed by their judicial underlings. The justices say the filings comply with federal ethics laws, but some sources of potential conflicts — such as expensive dining and use of vacation homes — are often kept off the lists. 

But now, as the Supreme Court prepares to begin a new term after a tumultuous summer in which Roe v. Wade was upended, the longstanding gaps in its ethical disclosures are being cast in a harsher light amid revelations of outsiders using perks and money to attempt to influence the justices.

Former religious right leader Rob Schenck has said the organization he led for more than 20 years, Faith and Action, engaged in an elaborate scheme to play on the justices’ financial insecurities by recruiting wealthy couples to “wine and dine” the court’s conservative members. The couples were chosen for their support for a religious right political agenda, and coached in advance in ways to make the justices feel more secure in their support of a faith-based legal agenda.

Schenck said the overtures to some of the justices in the first two decades of this century included not only highly expensive meals and club visits but invitations for the justices to use plush vacation properties — none of which appear to have been reported on their disclosure forms, according to a POLITICO review.

The refusal to provide spousal information is also salient because justices have often noted that their salaries — $274,200 for associate justices and $286,700 for the chief in 2022 — don’t compare to those of elite attorneys who can make millions in private practice. That means that some of the justices who are married receive a disproportionate share of their family income from their spouses.

POLITICO emailed a set of questions to Jesse Barrett. He did not respond. Instead, a response to that query came from a spokesperson for the Supreme Court, who said: “Justice Barrett complies with the Ethics in Government Act in filing financial disclosure reports.”

A spokesperson for Macrae declined to comment on the firm and Jane Roberts’ behalf.

In response to broader questions about the justices’ spousal disclosures, the court spokesperson also cited the federal law governing judicial recusals and pointed to a nearly three-decadeold statement in which justices with spouses or other close relatives in the legal profession rejected the notion of recusal from a case simply because such a relative works in a firm involved in the litigation.

“We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage,” the seven justices who adopted the policy declared. “Even one unnecessary recusal impairs the functioning of the court.”

Given the financial stakes involved — and the interests that law firms, corporations and activist groups have in influencing the outcome of court decisions — many ethical observers believe that the court is ignoring potential conflicts at its own peril.

One of the nation’s leading experts in legal ethics, New York University Law Professor Stephen Gillers, said the gaps in disclosure about the clients of justices’ spouses fuel public doubt.

“We don’t know who that is and we don’t know the amounts of money,” Gillers said. “That’s a legitimate concern.”

“Since a justice who owns 10 shares of stock in a party has to recuse even though the effect would be negligible on their finances, if that’s true, why should a justice’s spouse not have to reveal a very large payment from a client that could substantially improve a justice’s quality of life?” he asked.

Leveraging Roberts family connections

The vast majority of the attention on income among Supreme Court spouses has centered on Ginni Thomas, who founded her own consulting firm known as Liberty Consulting. Although her clients are now shielded from the her husband’s financial disclosure reports, Thomas has reportedly worked with the Center for Security Policy — a think tank accused of Islamophobia — and entities tied to conservative activist Leonard Leo. Ginni Thomas also recently reached an agreement to testify before the Jan. 6 select committee, meeting with the panel on Thursday.

Even less is known about Jane Roberts’ clients. She is a graduate of Brown University and Georgetown University Law Center, and married her husband in 1996. From 1987 until 2007, she worked at the law firm now known as Pillsbury Winthrop Shaw Pittman, where she advanced to the rank of partner.

In 2007, two years after her husband became chief justice, she joined the firm of Major, Lindsey & Africa, as a legal recruiter, and since 2019 has worked at Macrae.

Jungers said the firm’s efforts to attract the wife of the chief justice were originally kept to only a small number of the firm’s employees. There was a sense that Jane Roberts would be a big get for the firm — somebody who knows everyone in this town, with one of the most prestigious networks in Washington.

“We hoped that that’s what we were doing,” he said, also emphasizing that good recruiters have a level of skill beyond just their networks. However, he noted that she was “a good lawyer” at a “decent law firm.” Her husband was an “extraordinary lawyer at a very, very good law firm” who became the most important person in the Washington legal scene.

“We recruited her to help our firm with the recruitment of in-house lawyers,” he said. “I think some of us realized that there was a better place for her, which was to be recruiting partners for law firms because that’s both where she was, where her husband was, and then she knew lots of very important people in the legal landscape in Washington, D.C., and it was sort of a waste not to really use that.”

When Jane Roberts began her role at the firm, Jungers trained and mentored her. They started a role-playing exercise to practice phone calls with potential clients: She was the recruiter and Jungers was the potential client.

Jungers sat in Jane Roberts’ chair, and she sat in the guest chair. Behind Jane Roberts in her office, he recalled, there was a bookshelf with photographs of her and her husband with world leaders — he recalled seeing the Pope and Queen Elizabeth II among them.

Jungers said Jane Roberts soon proved to be highly effective at her job, and he noted that nearly everyone in the legal world would take her phone calls. The high-profile couple’s social scene is filled with “fairly closed circle” events of Washington, D.C., lawyers who mingle over exclusive events like wine drinking groups, book clubs or poker games, Jungers noted.

“As opposed to even some couples where he’ll have a network and she’ll have a network, it’s not really like that,” Jungers said, while also expressing his great admiration for Jane Roberts.

Jane Roberts’ clients include lawyers or law firms sometimes with active Supreme Court practices, at least some of which were more likely to work with her because of her status as the chief justice’s spouse, three people close to law firms told POLITICO. They include the British-American firm of Hogan Lovells, according to two people with knowledge of the arrangement. Hogan Lovells did not provide a comment.

Jane Roberts has also represented top government officials at federal agencies with direct interests in court business, said Stephen Nelson, another D.C.-area hiring consultant who said he and Roberts had referred candidates to one another in the past.

“I think because of her background in law firms, she already had a strong reputation and network, but being married to the … chief justice of the United States Supreme Court … certainly doesn't hurt,” said Nelson.

One consultant who worked with a firm with a Supreme Court practice said that the firm explicitly decided to work with Roberts because of her marriage to the chief justice.

“It's known that her access to people is heavily influenced by her last name,” said the consultant, who was granted anonymity under the condition that the firm for which the person consulted not be named. “It's no secret within the industry.”

Holes in disclosures

When SouthBank Legal opened a new Washington office headed by Jesse Barrett in 2021, the firm hailed the expansion in a press release as a demonstration of the firm’s “national capabilities.”

“A physical presence in Washington helps us solidify our national service footprint,” said Jesse Barrett, managing partner of the firm’s D.C. office, in the press release. “It is an exciting step, and our clients will benefit from our expanded ability to handle matters nationwide.”

Earlier this year, Barrett acknowledged the tension between her and her husband’s work. In an interview at the Ronald Reagan Presidential Library, Fred Ryan, former POLITICO chief executive officer and current publisher of The Washington Post, questioned Barrett on the challenges of balancing the couple’s careers. Barrett maintained that they were careful to avoid conflicts but argued that society’s expectations must change.

“But you know, I think we’re living in a time when we have a lot of couples who are both, are working, and so I think that the court and, you know, society has to adjust to expect that,” Barrett said.

When asked about whether there should be court guidelines for working spouses, Barrett facetiously pushed back against the idea.

“I don’t think most of the spouses would be very happy about those guidelines,” she quipped. “Certainly when I try to give my husband guidelines about what to do and not to do in the house even that doesn’t go over very well.”

In the case of Jesse Barrett, even the name of his firm is unavailable on his wife’s most recent disclosure statement. Information about spouses’ employment is required on the forms, but justices may ask to redact it for certain reasons. Despite Barrett’s profile appearing prominently on the front of his firm’s website — and its touting of his employment in a press release — the name SouthBank Legal was redacted on Justice Barrett’s public financial disclosure filing for 2021.

The terms that would allow a justice to redact some information appear to be somewhat broad. A memo authored by a financial disclosure adviser to judges offers a rationale to request the exclusion of broad categories of information on the grounds of safety.

The concern is based on increasing threats against the judiciary, culminating in such high-profile events as the killing of a federal judge’s son in New Jersey by a man who had once appeared before her in court, and the arrest of an alleged attempted assassin outside the Washington, D.C.-area home of Justice Kavanaugh in June.

The memo — issued by the director of legal services at a firm that helps judiciary members fill out their forms — explains that judges may ask to redact their position at a homeowners’ association, travel reimbursements, a teaching arrangement or an agreement with a law firm, as it could “indicate your presence in an unsecured location” or “present a security concern.” Even a club membership or a lake cottage could require redactions for security concerns, said the memo, which POLITICO obtained from Fix the Court and independently confirmed its authenticity.

A spokesperson for the Administrative Office of the U.S. Courts declined to comment on the memo, but said only a small fraction — fewer than 4 percent — of reports filed with the office last year sought redactions.

Russell Wheeler, a visiting fellow at the left-leaning Brookings Institution, underscored the balance between privacy and regulation; however, he noted that the justices are not the average person.

“It’s a rule of reason that says judges must be willing to accept restrictions on their behavior and that the ordinary citizen would find burdensome,” he said. “I think that probably applies to justices’ spouses and families as well.”

Like the reporting policies the court observes, the requirements for justices to recuse themselves from matters are also limited. A court spokesperson, asked about Jesse Barrett’s work, pointed to the Code of Conduct for judges and a federal statute that says a judge or justice should disqualify himself when the jurist’s spouse has a financial stake in a proceeding before the court.

The spokesperson also said Barrett adopted a policy a group of justices issued in 1993 calling for recusal when a “relative’s compensation could be substantially affected by the outcome here,” including cases where a relative is a law firm partner that receives a share of its profits.

However, under the standard accepted by Barrett, a justice need not recuse if the law firm commits to permanently excluding income from Supreme Court litigation from that spouse’s partnership shares.

An email to Jane Roberts also brought a reply from a court spokesperson who said that as the chief justice’s wife developed her recruiting practice she drew guidance from a 2009 Judicial Conference ethics panel opinion that says: “As a general proposition, the fact that the spouse or the spouse’s business has a business relationship with an entity that appears in an unrelated proceeding before the judge usually does not require the judge’s recusal.”

There’s some movement on Capitol Hill to change Supreme Court ethics rules, though it has found only modest traction.

When Congress passed ethics legislation in 2012, it expanded disclosures for stock trading by members of the House and Senate, their staffs and some executive branch employees. However, judges and justices were omitted from the more timely reporting required by the STOCK Act.

It took a decade, but in April of this year Congress enacted a bill sponsored by Sen. Chris Coons (D-Del.), Sen. John Cornyn (R-Texas), Rep. Deborah Ross (D-N.C.) and Rep. Darrell Issa (R-Calif.) ending that exemption. President Joe Biden signed the bill in May and the requirement for judges and justices to report stock trades more promptly kicked in last month.

Sen. Sheldon Whitehouse (D-R.I.) has introduced the Supreme Court Ethics, Recusal, and Transparency Act, which would require the Supreme Court to, among other provisions, establish recusal requirements — including cases that involve the income of a justice’s spouse — and certain required disclosures.

In a statement to POLITICO, Whitehouse noted that disclosure requirements for the justices lag behind other senior government officials. His bill aims to address the “weak ethics and transparency rules before the court’s reputation is damaged beyond repair,” he added.

“The ethical rot at the court continues to spread, and public faith in the court erodes along with it,” Whitehouse said. “The questions about financial conflicts of interest are one area of concern among many. There’s also the flood of dark-money influence bearing down on the court, from the nameless donors behind judicial selection to the orchestrated flotillas of anonymous amici curiae lobbying the justices to the spate of partisan decisions handing wins to corporations and big donor interests.”

A call for stricter Supreme Court ethics rules

Until recently, concerns about potential conflicts of interest tended to focus on appearances alone, but recent revelations suggest that certain interest groups have actively sought to influence the justices with expensive dining and entertainment, playing on their financial insecurities.

Schenck, a minister who headed Faith and Action from 1995 to 2018, cited Thomas and Justice Samuel Alito as targets of religious right overtures, along with the late Justice Antonin Scalia. Schenck said he would recruit wealthy couples to wine and dine the justices, with a goal of tacitly urging them to be more comfortable expressing their religious beliefs.

“We would rehearse lines like, ‘We believe you are here for a time like this,’” Schenck told POLITICO, referring to the Old Testament Book of Esther in which the Hebrew woman born with the name Hadassah becomes queen of Persia and succeeds in preventing a genocide of her people.

The effort openly sought to exploit the justices’ willingness to accept free meals and entertainment from supporters — and not to report all such private hospitality on their disclosures.

Even beyond Schenck’s allegations, Scalia was a frequent beneficiary of free travel from people with interests before the Supreme Court. In 2016, he died while on an exclusive hunting trip at Cibolo Creek Ranch, where he was the guest of John Poindexter, a financial services mogul who owned a company which had a case before the Supreme Court just the previous year.

The ranch is a famed destination for celebrities and European royalty, where guests hunt birds and big game.

Scalia had made the journey to Marfa, Texas, in a private plane with C. Allen Foster, a Washington attorney whose past clients included Republican interests and the Iraq War contractor Blackwater.

Scalia’s duck-hunting trip to southern Louisiana with former Vice President Dick Cheney, at a time when the Supreme Court was considering a case involving Cheney’s energy task force, was also chronicled in the media — but did not ultimately appear on Scalia’s disclosure forms. 

Scalia refused to recuse himself in the case, rallying to the defense of “social intercourse” in Washington and savaging what he termed “so-called investigative journalists.”

“While the political branches can perhaps survive the constant baseless allegations of impropriety that have become the staple of Washington reportage, this court cannot,” the late justice wrote. “The people must have confidence in the integrity of the justices, and that cannot exist in a system that assumes them to be corruptible by the slightest friendship or favor, and in an atmosphere where the press will be eager to find foot-faults.”

Efforts to pressure Supreme Court justices to adopt more stringent ethics rules have often turned on the question of whether the court, at the summit of an independent branch of government, must follow the dictates of Congress, another co-equal branch.

In 2007, following a round of public criticism about judges’ attendance at retreats hosted by nonprofit advocacy groups, the Judicial Conference created a policy requiring more prompt and detailed disclosure about such events and their sponsors. However, the justices were omitted from the rule and don’t post such disclosures even when attending or speaking at the same events.

In a 2011 report, Roberts noted that the high court has never addressed whether Congress has the power to impose financial reporting requirements on the justices. Still, he noted, the justices comply. He said the same was true of Congress’ mandate for certain recusals.

In more recent years, Roberts has expressed concerns about lapses in the federal courts’ ethics practices undermining confidence in the judiciary. In his most recent annual report on the state of the federal judicial system, he lamented the findings of a Wall Street Journal investigation that identified nearly 700 instances over the span of nine years where federal judges ruled on cases in which they or their families had some financial interest.

“Let me be crystal clear: the Judiciary takes this matter seriously,” Roberts wrote. “We are duty-bound to strive for 100 percent compliance because public trust is essential, not incidental, to our function. Individually, judges must be scrupulously attentive to both the letter and spirit of our rules, as most are. Collectively, our ethics training programs need to be more rigorous.”

Despite those concerns, the Judicial Conference has pushed in recent years for more legal authority to keep personal details about federal judges and their family members out of the public domain, citing security concerns, threats and acts of violence.

For more than two years, the judiciary has pressed Congress to grant special protections to a wide swath of information about judges and justices and their family members, including primary and vacation homes, details on their vehicles, their spouses’ employment and other affiliations. Some of the proposals drew criticism for intruding on free-speech rights protected by the First Amendment.

The federal Judicial Conference has backed pending legislation that would allow judges to force government agencies and social media sites to take down certain categories of information deemed to pose a security risk. Sen. Rand Paul (R-Ky.) has twice blocked a floor vote on the bill by insisting that federal lawmakers get the same protection.

Some courtwatchers say the disclosure and ethics policies have already done about as much as is feasible to ferret out conflicts.

“It seems like it’s impossible in the real world for there not to be some outside factors affecting the justices,” said Curt Levey of the conservative Committee for Justice. “We probably just have to live with that and trust. We’re already putting a lot of faith in the justices. There’s this semi-fiction that whatever their ideological political or other differences they put that aside. I guess we have to kind of trust them to not be influenced by who someone is working for or what cause they’re working for.”

However, with the increasing power of the court, the “American people deserve to know” the clients of Supreme Court Justice’s spouses, said Gabe Roth, executive director of Fix The Court, an advocacy group calling for stricter ethics reform for federal courts.

“To be a federal government institution that the people have trust in — ethics is a major part of it and accounting for conflicts of interest is a major part of it,” Roth said. “If the Supreme Court — the Supreme Court — can’t account for their conflicts of interest, we’re in a bad place.”

He added: “It’s important for the public to know that the justices’ spouses not only have jobs but have jobs that oftentimes directly intersect with the work of the Supreme Court, and currently there's no real good way to delineate that …

"And it almost seems that the current system is designed in a way where it's easy to hide those connections, and that doesn’t impart trust in the institution as a whole.”