NB: The simple answer to "conflict of interest" should be: if you have
government decision "power" over something and you, your spouse, your
siblings, your children (grand-children, etc.), parents (grand-parents,
etc.) or their financial estates (for, say, foundations established by
the above or conservatorships) have financial outcomes that could
experience a direct impact because of that "power" (e.g., awarding of a
contract, allowance of a specific construction or financial investment
project under review, etc.), the person with the "power" must recuse
her/him/themself.
https://www.dailykos.com/stories/2022/9/30/2126202/-Spousal-ethics-problems-at-the-Supreme-Court-go-well-beyond-Ginni-and-Clarence-Thomas
The rot in the Supreme Court goes beyond Clarence and Ginni Thomas
Joan McCarter
Daily Kos Staff
Friday September 30, 2022 · 10:56 AM PDT
WASHINGTON, DC - OCTOBER 26: (L-R) U.S. President Donald Trump, newly
sworn-in U.S. Supreme Court Associate Justice Amy Coney Barrett and her
husband Jesse Barrett look on during a ceremonial swearing-in on the
South Lawn of the White House October 26, 2020 in Washington, DC. The
Senate confirmed Barrett’s nomination to the Supreme Court today by a
vote of 52-48. (Photo by Alex Wong/Getty Images)
Gosh, why would anyone question their ethics?
More than a decade ago, Ginni Thomas’s political activities drew
scrutiny to her more public husband. More to the point, the failure of
that husband, Supreme Court Justice Clarence Thomas, to declare decades
of his wife’s income from that political activity drew attention,
resulting in him revising 20 years’ worth of financial disclosure forms.
That included $686,589 she earned between 2003 and 2007 from the
conservative Heritage Foundation think tank.
It also included her work at Liberty Central, a conservative “political
education” group she co-founded in January 2009. It ceased operations in
2012. The timing of the organization’s existence is critical, because
its primary mission seemed to be opposing President Barack Obama’s
Affordable Care Act. Ginni Thomas wrote an article for the
organization’s website in 2010 declaring that the new law was
unconstitutional. Guess how hubby Clarence voted on that in the Supreme
Court? That was in 2012, when one tenuous vote from Chief Justice John
Roberts saved the ACA, and when Liberty Central disbanded.
Fast forward 10 years and the Supreme Court code of ethics,
transparency, and disclosure that good government groups have been
clamoring for has yet to be enacted, and Clarence and Ginni Thomas are
in the news again because she helped try to overthrow the government.
Thomas reportedly told the House select committee investigating the Jan.
6 insurrection that “she has ‘never’ spoken to her husband about pending
cases before the Supreme Court, calling it an ‘iron clad rule in our
home.’” Maybe she also never told him about all the money she was
earning from conservative groups thanks to her proximity to a Supreme
Court justice.
The Thomases are the most enduringly egregious examples of why there
needs to be not just an expansion of the Supreme Court, but real reforms
that include finally making the court comply with a code of ethics—just
like every other branch of the judiciary is compelled to do. But the
Thomases are definitely not the only Supreme culprits in fishy spousal
entanglements.
Meet Jesse M. Barrett and Jane Roberts, spouses to Justice Amy Coney
Barrett and Chief Justice John Roberts, and subject to a deep
investigative dive by Politico
Jesse Barrett’s law firm, SouthBank Legal, just happened to expand from
its South Bend, Indiana, base to Washington, D.C., a year after his wife
reached the Supreme Court. His specialties are “white-collar criminal
defense, internal investigations, and complex commercial litigation.”
His firm of fewer than 20 lawyers has clients in “virtually every
industry,” including “over 25 Fortune 500 companies and over 15 in the
Fortune 100.” Chances are pretty darned good that at some point, a case
involving one of those companies has come before the Supreme Court.
But we don’t know, because Barrett doesn’t have to disclose any of her
husband’s clients in her disclosure documents, much less recuse herself
in any of those cases. Politico reports that in her most recent
disclosure, she redacted the name of her husband’s firm. On his law firm
bio Barrett says he has “tried several dozen federal cases to jury
verdict and has handled numerous appeals, including successful arguments
in state and federal appellate courts.” So his own work, and his firm’s,
could definitely come before the Supreme Court. But in those appellate
courts, every judge is going to know who is arguing in front of them: a
Supreme Court justice’s husband, just one wrinkle in the complicated
judicial ethics/spousal debate.
In 2007, Jane Roberts quit her job as a partner at Pillsbury Winthrop
Shaw Pittman to become a legal recruiter—a headhunter for law firms.
John Roberts became chief justice in 2005. The other Roberts in now
managing partner at the Washington, D.C., office of Macrae, a firm which
exists for the purpose of placing high-powered attorneys with
high-powered firms. “Macrae knows law firms,” their website boasts.
“Their practices. Their geographic markets. Their cultures. Our passion
built an inclusive transatlantic network to identify optimal affinities.”
It’s a lucrative business. Politico reports that “A single placement of
a superstar lawyer can yield $500,000 or more for the firm.” A superstar
lawyer and a high-powered law firm can only be helped by having that
connection made by someone in such proximity to real power. The guy who
hired Jane Roberts for her previous job admitted it freely, telling
Politico that they wanted the benefits of having the wife of the chief
on their staff because “her network is his network and vice versa.”
Robert does list the name of her company on his disclosures, but not the
lawyers and the firms she’s worked with, “even though her clients
include firms that have done Supreme Court work, according to multiple
people with knowledge of the arrangements with those firms,” Politico
found in its investigation of Supreme spouses and ethical conflicts.
Politico contacted both Barrett’s and Roberts’ firms, and heard back
from a Supreme Court spokesperson in the case of Barrett: “Justice
Barrett complies with the Ethics in Government Act in filing financial
disclosure reports.” Which is the crux of the problem: She’s complying
with the Swiss cheese of judicial ethics requirements, and taking full
advantage of all the holes.
Pushed further on the broader question of disclosures by justices of
their spouses work, the spokesperson pointed to a statement the court
issued in 1993, rejecting the idea that there could be any kind of
conflict of interest for a justice in a spouse’s work.
“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.”
That was back when 80% of the population had at least some confidence in
the Supreme Court, and 47% had a great deal/quite a lot of confidence in
it. Now 68% express some degree of confidence, but just 25% say a great
deal or quite a lot, and 30% of people now have very little confidence
in it. That might be because the modern Supreme Court has done little to
show that it’s anything but a partisan political entity intent on
imposing its out-of-the-mainstream will on the American people.
The arrogance the court showed in 1993 is still on display today.
Earlier this year, Barrett participated in an interview with Fred Ryan,
former Politico chief executive officer and current publisher of The
Washington Post. He asked about the potential for conflict with her
husband’s work, and Barrett said that it wasn’t the court that had to
change, but public expectations.
“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. Asked
about whether the court should adopt some guidelines to address the
problem of spousal conflicts, she blew the question off. “I don’t think
most of the spouses would be very happy about those guidelines,” she
answered. “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.”
That kind of arrogance and untouchability makes trusting the justices to
do the right thing difficult. As does the work of the people they share
their personal lives—and finances—with. Sen. Sheldon Whitehouse (D-RI)
puts it succinctly: “The ethical rot at the court continues to spread,
and public faith in the court erodes along with it.”
“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,” Whitehouse said.
After the last term of absolutely trash decisions out of the court (with
the next term promising more of the same), the other two branches of
government need to get serious about fixing it. That means imposing a
code of ethics and expanding the court.