But this would be the wrong fight for liberals to pick. As it happens, Mrs. Roberts has showed exemplary concern about avoiding even the appearance of impropriety. She switched careers from being a law firm partner to being a recruiter after her husband became chief justice, a move that must be viewed as a sacrifice in a sexist world where women still comprise less than a quarter of major law-firm partners.
As a recruiter, her stated policy since 2007 has been to avoid anything connected to her husband and not do work with litigators who are actively arguing cases in front of the Supreme Court. The letter from the former colleague reportedly does not cite any evidence to the contrary, suggesting rather that she has worked with firms that have had business before the court — as essentially all large firms do at some time.
The chief justice, for his part, has demonstrated the kind of judicial independence that lands you in the position of being widely criticized on both the left and the right. The idea that he would be influenced in a case by the fact that his wife makes a living by helping law firms hire new people — and therefore gets paid a fee by those firms — is about as preposterous as it gets. Even Roberts’s critics, liberal and conservative alike, acknowledge his profound commitment to protecting and preserving the institutional legitimacy of the Supreme Court. He is universally recognized as one of the paragons of ethical behavior in the legal world today, a kind of Republican version of Merrick Garland.
But the true problem lies deeper, in the implicit assumption that the spouse of a justice should be some kind of Caesar’s wife, held to an impossible standard that would effectively require her to have no career at all.
Consider that the justices all went to law school and worked in legal environments. It should come as no surprise that several are married to lawyers. Those lawyers will naturally want to work in their chosen fields. They should not have to quit because their spouses ascend to the bench.
Consider, too, that the current suggestion of potential conflict is being raised for a justice’s wife, not a justice’s husband. Somehow, in the course of Justice Ruth Bader Ginsburg’s long and distinguished judicial career, no one seriously proposed that her husband, Marty Ginsburg, who was a renowned expert in tax law, give up his position at a major Washington law firm.
Beyond gender equity, there are other strong reasons to allow justices’ spouses to stay in the legal workforce — subject to the principle that they should avoiding actual conflicts or the meaningful appearance of conflict.
To be clear, I am not talking about the question of a justice’s spouse (call her, say, Ginni Thomas) denying the election results or communicating with the White House or a presidential campaign when issues related to the election are before the Supreme Court. That separate issue is really about whether the justice should be recused, not about conflict-of-interest rules, which are about financial interests.
Rather, I am saying that the ordinary principles that govern conflict of interest should be applied sensibly to justices’ spouses, not applied in an extreme fashion that impugns their integrity without evidence or much reasoning.
I am also not weighing in here on whether Congress should try to force a code of ethics on the Supreme Court justices. Anyway, the constitutionality of such a move would be judged by, you guessed it, the Supreme Court justices.
My argument, rather, is that we should not police the justices’ spouses in such a restrictive way that they cannot participate as normal people in their chosen professions. It serves no useful purpose to break norms of attorney-client privilege by mandating that Jesse Barrett disclose his clients, any more than would-be ethics watchdogs should be scrutinizing Dr. Patrick Jackson’s surgical patients to see if they have business before the court. (They are the spouses of justices Amy Coney Barrett and Ketanji Brown Jackson.)
There comes a point where demanding unnecessary transparency from justices’ spouses may become a form of professional interference. If we don’t like the justices, we are free to say so. Making their spouses’ lives difficult to serve a personal or political agenda is bad for the court and the country.
Isolated, embattled justices are not going to be better justices. The justices need professional and personal contacts to stay sane and to understand the world as it is — the way we all do.
We will make much better ethical judgments if we acknowledge that the justices are human beings with real lives. To paraphrase Shakespeare’s Richard II, they live on bread like we do. They feel want, taste grief, and need friends. That includes some of them having spouses who work.
The more we treat the justices as though they are a coterie of cloistered monks and nuns hidden away from the real world, the more likely they are to lose sight of real-world consequences. Haven’t we gone far enough in that direction already? That’s not the court we want. It is certainly not the court we need.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
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