Last week Politico published a lengthy account that boldly alleged in its headline that Supreme Court justices were trying to “shield spouses’ work from potential conflict of interest disclosures.”
The substance of the article is a heap of innuendo apparently advanced in the hope that readers will speculate that there are ethical lapses lurking in the shadows of spousal business activity, just waiting to be revealed. The piece discusses at length the law practice of Justice Amy Coney Barrett’s husband, the consulting business of Justice Clarence Thomas’ wife, and the legal recruiting work of Chief Justice John Roberts’ wife . . . without identifying a single disclosure rule broken or breach of ethics on the part of those justices.
As for other conservative justices, the wives of Justices Samuel Alito and Neil Gorsuch reported no non-investment income, and Justice Brett Kavanaugh’s wife got little attention since her salary comes from the Village of Chevy Chase. Justice Ketanji Brown Jackson, whose husband works as a surgeon, also received little attention even though she is the only justice in the article who failed to follow disclosure rules: She omitted “self-employed consulting income that my spouse periodically receives from consulting on medical malpractice cases” and later made that disclosure.
The other two members of the liberal wing of the Court, Justices Sonia Sotomayor and Elena Kagan, are unmarried, which underscores the convenience of the timing of what amounts to a partisan hit job. Imagine if the focus on justices’ spouses came when Justices Ruth Bader Ginsburg and the recently retired Stephen Breyer were still serving. During the 1990s, it was reported that Ginsburg had participated in 21 cases that involved companies her husband Martin—himself a high-powered attorney—had invested in. Those were violations of the conflict of interest law that binds federal judges. Breyer, who faced serious conflict-of-interest questions relating to his membership in the Lloyd’s of London insurance syndicate during his nomination in 1994, participated in a case in 2015 while his wife owned stock in a company involved in the dispute.
There is little reason to conclude that those lapses were anything but inadvertent mistakes. Once revealed, the spouses sold the shares of stock at issue, and there was likely never any true prejudice involved. But it is absurd for self-proclaimed watchdogs of the Court to try to create a specter of impropriety for justices who follow the rules while ignoring liberal jurists of recent times who sat on cases improperly.
Perhaps it will come as no surprise that the watchdog group on which the Politico report was based is Fix the Court, a dark-money outfit with ties to the vast Arabella Advisors network. A New York Times report found that groups in the Arabella network spent a total of $1.2 billion in 2020 alone. Fix the Court was originally a project of Arabella’s New Venture Fund, but spun off in 2021 around the same time as another Arabella-incubated entity, Demand Justice. Fix the Court is nominally nonpartisan but in practice another political outfit that readily launches political attacks on conservative judges, including the three justices appointed by President Trump. During the Kavanaugh nomination, the organization purchased the domain names BrettKavanaugh.com and BrettKavanaugh.net, on which they then placed links to groups dedicated to supporting sexual assault survivors and left-wing advocacy groups. The head of Fix the Court is Gabe Roth, who had previously worked for the communications consultancy SKDKnickerbocker, the clients of which include prominent Democratic politicians and numerous dark-money groups on the Left.
Fix the Court predictably pushed a Politico narrative that was after all based on its own handiwork and the stuff of Sheldon Whitehouse tinfoil hat floor speeches. Groups that purport to be nonpartisan should be especially careful to avoid partisan hit jobs. They should be what they want the objects of their criticism to be—judicious. We need to hold our justices to a consistent standard, not create a draconian standard for certain justices and a flexible one for others.