At the Supreme Court, Ethics Questions Over a Spouse’s Business Ties (2023)

After Chief Justice John G. Roberts Jr. joined the Supreme Court, his wife, 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. Mrs. Roberts later recalled in an interview that her husband’s job made it “awkward to be practicing law in the firm.”

Now, a former colleague of Mrs. Roberts has raised concerns that her recruiting work poses potential ethics issues for the chief justice. Seeking an inquiry, the ex-colleague has provided records to the Justice Department and Congress indicating she has been paid millions of dollars in commissions for placing lawyers at firms — some of which have business before the Supreme Court, according to a letter obtained by The New York Times.

In his letter last month, Kendal Price, a 66-year-old Boston lawyer, argued that the justices should be required to disclose more information about their spouses’ work. He did not cite specific Supreme Court decisions, but said he was worried that a financial relationship with law firms arguing before the court could affect justices’ impartiality or at least give the appearance of doing so.

“I do believe that litigants in U.S. courts, and especially the Supreme Court, deserve to know if their judges’ households are receiving six-figure payments from the law firms,” Mr. Price wrote.

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.

Mrs. Roberts previously said that she handled conflicts on a case-by-case basis, avoiding matters with any connection to her husband’s job and refraining from working with lawyers who had active Supreme Court cases.

Senator Richard J. Durbin, Democrat of Illinois and chairman of the Judiciary Committee, did not address how the committee would respond to Mr. Price, but said in a statement that his letter raised “troubling issues that once again demonstrate the need” for ethics reforms to “begin the process of restoring faith in the Supreme Court.”

Public confidence in the court recently fell to a historic low, polls showed, and Democrats in Congress have called for greater transparency, including stronger disclosure and recusal standards. The Justice Department declined to comment.

Mr. Price and Mrs. Roberts both had worked as legal recruiters for Major, Lindsey & Africa, a global firm based in Maryland. According to the letter, Mr. Price was fired in 2013 and sued the firm, as well as Mrs. Roberts and another executive, over his dismissal.

He lost the case, but the litigation produced documents that he sent to Congress and the Justice Department, including spreadsheets showing commissions attributed to Mrs. Roberts early in her headhunting career, from 2007 to 2014. Mrs. Roberts, according to a 2015 deposition in the case, said that a significant portion of her practice was devoted to helping senior government lawyers land jobs at law firms and that the candidates’ names were almost never disclosed.

“I keep my placements confidential,” she said in the deposition.

Mrs. Roberts, now the managing partner of the Washington office of Macrae Inc., had spent two decades at the law firm Pillsbury Winthrop Shaw Pittman, where she became a partner in the global technology group and also focused on talent development. In 2007, she changed careers and soon ascended the ranks of her new industry. Partners at leading law firms in Washington on average make well over $1 million a year, and at the high end, they can be paid over $7 million. Recruiting firms take a large cut from those placements, often equivalent to a quarter of the new hires’ first-year salaries.

The spreadsheets list six-figure fees credited to Mrs. Roberts for placing partners at law firms — including $690,000 in 2012 for one such match. The documents do not name clients, but Mr. Price recalled her recruitment of one prominent candidate, Ken Salazar, then interior secretary under President Barack Obama, to WilmerHale, a global firm that boasts of arguing more than 125 times before the Supreme Court.

Justices, who are largely self-policed, are required to make annual disclosures about their finances — including the source of spouses’ income, the type and the date but not the amount. In his annual disclosure, the chief justice, who has apparently never recused himself from a case because of his wife’s work, listed her employers but not the names of her clients or her earnings, usually offering a brief description: “attorney search consultants — salary.”

Mr. Price argued in his letter that the labeling was misleading, because salaries are “guaranteed and steady,” but commissions “depend on cultivating and capitalizing on relationships in order to consummate particular deals.”

Joshua L. Dratel, who is representing Mr. Price, said in an email that the 2009 advisory opinion cited by the court gave credence to the ethical concerns raised in the letter, because Mrs. Roberts’s placements were not necessarily “isolated activities” but rather a “pattern of continuing involvement.”

The opinion says that judges should recuse themselves in certain situations, including if a spouse performed “four high level executive recruitments” for the same company in a year and collected large fees. That would constitute a “substantial and ongoing relationship,” but if the work were spread over a considerably longer period, “recusal may not be required.”

An ethics opinion by Bennett L. Gershman, a Pace University law professor and former Manhattan prosecutor, accompanied the letter and said “it is plausible that the Chief Justice’s spouse may have leveraged the ‘prestige of the judicial office’” to “raise their household income.” He added that those concerns, coupled with what he described as the chief justice’s lack of disclosure of potential conflicts, “threaten the public’s trust in the federal judiciary, and the Supreme Court itself.”

But another ethics expert, Amanda Frost, a law professor at the University of Virginia, said in an interview that Chief Justice Roberts appeared to have met his disclosure obligations. Ms. Frost said that judicial spouses should be able to have their own careers and that the chief justice would not need to recuse himself based on the nature of his wife’s work.

“It feels hard to imagine how this would corrupt his vote,” she said.

During the past year, the Supreme Court has contended with the leak of the draft decision overturning Roe v. Wade, as well as reports about the activities of Virginia Thomas, who joined efforts to overthrow the results of the 2020 presidential election. Her husband, Justice Clarence Thomas, later participated in court matters involving the election and the Jan. 6, 2021, attack on the Capitol.

Mr. Price, in an interview, cited a “wave of revelations about the court and questionable decision-making or questionable behavior” as his impetus for coming forward now.

Last September, Politico reported on Mrs. Roberts’s recruiting work and the confidentiality of her clients.

Only a half-dozen of the people she recruited have been publicly identified, according to news reports reviewed by The Times. They are Robert Bennett, former lawyer to President Bill Clinton, recruited to Hogan Lovells in 2009; Neil MacBride, former U.S. attorney for the Eastern District of Virginia, to Davis Polk in 2013; Mr. Salazar, to WilmerHale in 2013; Brendan Johnson and Timothy Purdon, former U.S. attorneys for South Dakota and North Dakota, to Robins Kaplan in 2015; and Michael Held, former lawyer for the Federal Reserve Bank of New York, to WilmerHale in 2022. (Mr. Salazar is now U.S. ambassador to Mexico, and Mr. MacBride is general counsel at the Treasury.)

About two years ago, Mrs. Roberts discussed her Washington office’s work in one key sector, saying in an interview that of the nation’s 50 leading law firms, more than half had “asked us for help in growing their antitrust practices.”

The post At the Supreme Court, Ethics Questions Over a Spouse’s Business Ties appeared first on New York Times.