Yet Another Ethics Complaint Against the Supreme Court

The U.S. Supreme Court’s legitimacy is under the microscope again this week with the publication of a whistleblower’s complaint against Chief Justice John Roberts by the The New York Times. At issue is the work of Roberts’ wife, Jane Sullivan Roberts, as a high-powered headhunter for lawyers, and the work she’s done placing lawyers in firms that argue cases before the Supreme Court.

Kendal Price, a 66-year-old Boston lawyer, wrote to the Justice Department and Senate Judiciary Committee arguing that the justices should be held to a higher standard of transparency when it comes to the work of their spouses and their financial stake in the court’s business. “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,” Price wrote.

He accuses John Roberts of failing to disclose the full extent of his wife’s work.  Jane Roberts is managing partner at the Washington, D.C., office of Macrae, a firm that charges huge fees for placing high-powered attorneys with high-powered firms. Roberts has publicly admitted that she has helped powerful officials, in agencies with cases in front of the Supreme Court. “A significant portion of my practice on the partner side is with senior government lawyers, ranging from U.S. attorneys, cabinet officials, former senators, chairmen of federal commissions, general counsel of federal commissions, and then senior political appointees within the ranks of various agencies, and I—they come to me looking to transition to the private sector,” she said.   Roberts has boasted, “Successful people have successful friends.”

Pace University law professor Bennett Gershman filed an analysis along with Price’s complaint, writing that “it is plausible that the Chief Justice’s spouse may have leveraged the ‘prestige of judicial office’ to meaningfully raise their household income.” Given her boasting in that testimony, yeah, that’s definitely a possibility.  “That concern, together with the failure of the Chief Justice to recuse himself in cases where his spouse received compensation from law firms arguing cases before the Court, or at least advise the parties of his spouse’s financial arrangements with law firms arguing before the Court, threaten the public’s trust in the federal judiciary, and the Supreme Court itself,” Gershman wrote.

Price filed a sworn affidavit with the letter and complaint, saying that he had been told that “Roberts was the company’s highest-earning recruiter and that significant commissions early in her career, going to someone with so little recruiting experience, represented a ‘stark anomaly’ compared to the rest of the field.”

One of Jane Roberts' clients was former Interior secretary and congressman Kenneth Salazar.  Price calculates that Jane Roberts received about $350,000 for placing Salazar at prominent D.C.-based WilmerHale in 2013. “WilmerHale maintains a significant practice before the Supreme Court,” Politico reports, “and between 2013 and 2017, argued more cases before the court than any other law firm, according to data from SCOTUSBlog cited in the complaint.”

Price’s attorney, Joshua Dratel, cited Price’s frustration that there remains no official mechanism for bringing ethics concerns at the court, and the fact that the court sets its own rules and individual justices can choose to abide by them or not—they are not bound by the code of ethics to which all other federal judges are subject.  “The importance of this issue and the unavailability of any viable means of addressing this is what led to us sending it to the places that we sent it to,” Dratel told Politico. “This is a gap in transparency that’s only become more critical in the past year in terms of the impact that it has on the integrity of our institutions.”

There is no official mechanism for bringing ethics concerns to the Supreme Court.  In addition, the highest court in the land sets its own rules and individual justices can choose to abide by them or not.  Even worse, Supreme Court Justices are not bound by the code of ethics to which all other federal judges are subject.

Gershman argues that John Roberts should recuse himself from all the cases in which the lawyers involved have “made substantial payments to his household or ‘fully disclose’ such payments to counsel and seek a waiver by the litigants.”  Senator Dick Durbin didn’t say whether he is intending to hold hearings to examine the Price’s allegations. He did say that this is further evidence that the court needs to step up its ethics game.   “This complaint raises troubling issues that once again demonstrate the need for a mandatory code of conduct for Supreme Court justices,” Durbin said. “We must work on a bipartisan basis to pass the Supreme Court Ethics Act, which would simply require Supreme Court justices to adhere to the same standard of ethics as other federally appointed judges. Passing this requirement is a common sense step that would help begin the process of restoring faith in the Supreme Court.”