Politico’s gaslighting of Supreme Court justices continues with its recent story on a letter from four left wing groups requesting Congress to “close a disclosure loophole in the judiciary.” According to Politico, “Currently, the justices merely disclose their spouses’ jobs, not the identity of their clients or the level of compensation.” But there is no “loophole” for justices, who comply with the same laws as Members of Congress & Executive Branch officials, who also don’t disclose spouse’s clients and income.
Politico implied in a previous story that there are possible serious unknown conflicts of interest for justices because they don’t disclose their spouse’s clients. The report focused on the spouses of Chief Justice Roberts, Justice Barrett and Justice Thomas. This is nonsense.
The Ethics in Government Act, which governs all federal officials’ disclosure requirements for spouses’ outside work, applies to Congress, the Executive Branch, and the Judiciary, including justices. The relevant section on disclosure of spouse’s income requires the filer to list the source of income exceeding $1,000 earned by a spouse from any person.
Thus, the law is expressly written so that a filer Member of Congress and staff, Executive Branch official, or justice) only needs to disclose a spouse’s employer. That’s it. For example, Congressman Hank Johnson’s wife is a lawyer in private practice. On his 2022 financial disclosure form, he merely disclosed his spouse’s law firm, not her clients or income.
Fix The Court, CREW, POGO and Free Law Project’s letter to Congress misleadingly describes this provision as a “loophole in the judiciary,” and asks Congress to require justices to disclose the source of any payments totaling more than $5,000 to a spouse from any client for work rendered.
Gabe Roth from Fix The Court claims that these disclosures would allow justices to recuse themselves from cases in which a spouse has a financial interest. But recusal laws already require judges and justices to recuse from cases in appropriate circumstances. This amendment is really just a marriage penalty to bully justices into unnecessarily recusing themselves from cases, and will hamper justices’ spouses from being able to work.
It’s worth remembering that no group or any media outlet had concerns when liberal justice Ruth Bader Ginsburg never disclosed her husband’s clients when he practiced law at a firm that appeared many times before the Supreme Court.
But the authors of this letter nor the Politico story ever mention that this current provision or the proposed amendment covers Congress and the Executive Branch too. Politico only attacks justices’ spouses’ work, claiming “the details of their clients remain largely unknown” surrounded by Roth’s “black box.”
These so-called “concerns” surely also exist regarding Members of Congress’s spouses and their staff alongside executive branch officials. Congress writes laws and executive branch officials promulgate regulations and administer federal programs. Following the logic of Fix the Court and Politico, lots of companies might hire the spouses of lawmakers or their staff or executive branch officials to influence these public servants’ decisions.
But POGO, CREW, FTR, and Free Law Project don’t seem to be interested in these possible conflicts of interest. Politico quotes Rep. Johnson on the proposed law: “I welcome this proposal to shine a light on just who or what may be influencing the justices’ decision in major cases.” Why didn’t Politico ask Rep. Johnson if he supports disclosing his wife’s clients too? Per Rep. Johnson’s statement, the same argument could be made for shining a light “on just who or what may be influencing” Rep. Johnson’s decisions or other Members of Congress’ work. But no problems there.
So, why is Politico creating a bogus story that justices have some sort of “loophole” and should have to disclose more than other officials regarding their spouse’s work? Politico’s story can only be an attack on the court’s legitimacy because SCOTUS is moving in an originalist direction.
Given that FTR’s proposed amendment would also require Members of Congress and staff to disclose their spouses’ clients and income, this proposal will almost certainly never pass, regardless of who is in control of Congress. I don’t believe it is good policy to require justices or other federal officials to disclose more on a spouse’s clients or income. It’s unnecessary and would harm working spouses and make serving in government more unappealing for two-career families.
As noted earlier, recusal laws for judges and justices are already on the books, as well as conflict of interests laws that govern the other branches regarding spousal financial interests.
But in case that isn’t enough, let’s extend Politico’s theory of transparency to its logical conclusion: Should the outlet’s reporters, editors, and media owners disclose their spouses’ clients and income to see who may be influencing their reporting? Fair is fair, right?
Mark Paoletta served in the George H.W. Bush and Trump Administrations and worked on the confirmations of Justices Thomas, Gorsuch, and Kavanaugh. He is a partner at Schaerr Jaffe LLP and a Senior Fellow at the Center for Renewing America. He represents Ginni Thomas in connection with the January 6th Select Committee proceedings.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.