This is not the ethics scandal the Times thinks it is.
The post Yes, A Supreme Court Justice’s Spouse Makes A Ton From Biglaw Firms. No, This Is Not Actually A Big Deal. appeared first on Above the Law.

(Photo by Collection of the Supreme Court of the United States via Getty Images)

Oh boy, here we go again. Another Supreme Court ethics scandal. But unlike… everything about Ginni Thomas, this one leaves me decidedly unconcerned.

Yesterday, the New York Times published a story about the “ethics questions” surrounding the work of Jane Sullivan Roberts, wife of the Chief Justice, John Roberts. For those that may not be aware, Jane was once a Biglaw partner at Pillsbury Winthrop Shaw Pittman but two years after her husband was appointed to the Supreme Court she left that role, saying, it was “awkward to be practicing law in the firm.”

Like many who no longer want to use their J.D. to practice law, Jane Roberts turned to legal recruiting, first at Major, Lindsey & Africa then at Macrae. Now her work as a recruiter is coming under fire. The Times got a copy of a letter sent by a former colleague of Jane Roberts’s, Kendal Price, to Congress and the Justice Department raising the flag that Jane Roberts receives commissions from law firms, some of which have business before the Court.

To which I say, duh. Were people confused about how recruiting works?

But Price wrote, “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.”

Listen, I’ve written extensively about the recusal disaster-cluster-fuck-o-rama that Clarence Thomas is distinctly not doing despite his wife’s advocacy work on behalf of issues destined to appear before the Supreme Court. It’s a repeated pattern, with Ginni’s post-election advocacy making Clarence’s votes on matters related to the January 6th committee super suspect. But even before that made headlines, she led a grassroots movement in support of Trump’s travel ban, worked for right-wing think tanks, and led efforts to defeat the Affordable Care Act. And nary a recusal in sight. That is clearly bad.

But that is worlds different than what Jane’s been up to.

Yes, Jane Roberts gets paid a ton of money for placing partners at Biglaw firms, and some of those firms also argue before the Court. But that’s not advocacy work. When Biglaw firm X pays the recruiting firm for Jane’s work they’re not trying to curry favor with her husband, they’re paying for the value of that new cog in their Biglaw machine. There’s no access or insight into the Court’s workings being given away when Jane Roberts places a Private Equity partner at a firm. Hell, she may even have placed candidates at two firms working on opposite sides of a case before the Court.

Sure, it might be nice, for the sake of transparency, to have additional information about the work of the justices’ spouses. But blowing up what’s ultimately a nothingburger of an ethics issue runs the risk of undermining real ethical problems, like the aforementioned Ginni Thomas.

Also, Jane Roberts has been doing the same job for 15+ years. So, why is it all of a sudden news?

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.

Ahhhh. There it is.

There are some ethics absolutists that get the ick pretty much whenever a judicial spouse works in the legal industry at all.

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 Amanda Frost, law professor at the University of Virginia, has a relevant comment that has a much more realistic ring to it for me, “It feels hard to imagine how this would corrupt his vote.”

The Supreme Court would be better off with clear ethics rules and recusal standards, that is true. But the recruiting work Jane Roberts is doing is simply not the problem.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon