But this would be the wrong battle for liberals to pick. As it happens, Mrs. Roberts has shown exemplary concern about avoiding even appearing inappropriate. She switched careers from her law firm partner to her recruiter after her husband became Chief Justice of the Supreme Court. This must be seen as a sacrifice in a sexist world where women make up less than a quarter of the partners in major law firms.
As a recruiter, her stated policy since 2007 is to avoid anything related to her husband and not to work with litigators who are actively litigating before the Supreme Court. A letter from a former colleague of hers reportedly cited no evidence to the contrary, rather suggesting that she had worked with companies she had dealt with in court.
The Chief Justice has demonstrated judicial independence that has led you to a position that has been widely criticized by both the Left and the Right. The idea that he would be affected by the fact that his wife makes a living by helping law firms hire new people is as silly as it gets. Even Roberts’ critics, liberal and conservative, recognize his deep commitment to protecting and preserving the institutional legitimacy of the Supreme Court. Widely recognized as a person, a kind of Republican version of Merrick Garland.
But the real problem lies deeper and lies in the tacit assumption that the judge’s spouse should be some kind of Caesar’s wife, a disqualification that effectively demands that he have virtually no career at all. It is bound by possible standards.
Consider that the judges all went to law school and worked in a legal environment. It should come as no surprise that some are married to lawyers. Those lawyers will naturally want to work in their chosen field. They don’t have to quit just because their spouse is on the bench.
Also consider that the current potential conflict proposal is posed against the judge’s wife, not the judge’s husband. No one in her judicial career seriously suggested that her husband, Marty Ginsburg, a renowned expert in tax law, relinquish his position at a major Washington law firm.
Beyond gender equality, there are other compelling reasons to allow a judge’s spouse to remain in the legal profession. However, subject to the principle that actual conflicts and meaningful appearances of conflicts should be avoided.
Just to be clear, I don’t want the judge’s spouse (call her Ginny Thomas) to deny the results of the election or to criticize the White House or the presidential campaign when election-related issues are before the Supreme Court. I’m not talking about getting in touch or anything. That other question isn’t about the conflict of interest rules regarding financial gain, but about whether justice should be reused.
Rather, I believe that the usual principles governing conflicts of interest should be wisely applied to the judge’s spouse, and applied in an extreme way that denounces their good faith without evidence or much reason. I say it shouldn’t.
Nor am I debating whether Congress should impose an ethics code on Supreme Court justices. Anyway, the constitutionality of such a move is, you guessed it, decided by a Supreme Court judge.
Rather, my contention is that judge spouses should not be policed in such a restrictive way that they cannot participate in their chosen profession as ordinary persons. Breaking the code of attorney-client privilege by mandating it serves no useful purpose. Becoming an ethics observer scrutinizes whether Dr. Patrick Jackson’s surgical patients have court errands. (They are the spouses of judges Amy Coney Barrett and Ketanji Brown Jackson.)
Requiring unnecessary transparency from a judge’s spouse can be a form of professional interference. Making a spouse’s life difficult to serve a personal or political agenda is bad for the courts and the country.
An isolated, distraught judge will never be a better judge. Judges need professional and personal contacts to stay sane and understand the world as it is.
We can make much better ethical judgments if we allow our judges to be real-life human beings. eat bread and live They feel deprived, feel sad, and need friends. This includes people whose spouses work.
The more judges are treated as coterie of reclusive monks and nuns hidden from the real world, the more likely they are to lose sight of the real world consequences. Are we not already far enough in that direction? That’s not the court we want. That’s certainly not the court we need.
More thoughts from this author on Bloomberg:
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This column does not necessarily reflect the opinions of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a columnist for Bloomberg Opinion. He is a Harvard Law Professor and most recently author of A Broken Constitution: Lincoln, Slavery, and Rebuilding America.
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