Friends in High Places

Supreme Court Justices have made millions of dollars in undisclosed transactions with lawyers and law firms with business before the Court.

Business Insider has just reported explosive new details about a whistleblower complaint stemming from $10.3 million in commissions Chief Justice John Roberts’ wife Jane has received for placing lawyers at law firms with business before the Supreme Court. And it seems (stop me if you’ve heard this one before) Chief Justice Roberts has failed to adequately disclose his wife’s income:

Now, [whistleblower Kendal] Price and a legal ethics expert that he consulted for his complaint say that Chief Justice Roberts may have his own disclosure issues. The millions that Jane Roberts made placing Washington lawyers into high-level jobs, described as “commission” on internal firm documents, was listed each year as “salary” on John Roberts’ financial disclosure forms. (The form only requires judges to list the sources of spousal income, not the amounts.)

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The ultimate sources of her income were the firms hiring Major, Lindsey & Africa-backed candidates. Their identities and the specific amounts that they paid Roberts for her services remain unknown.

Price's affidavit says that John Roberts’ characterization of his wife's income as “salary” is “misleading.” A memo written in support of Price’s complaint by Bennett Gershman, professor at the Elisabeth Haub School of Law at Pace University who has written books on legal ethics, goes further. “Characterizing Mrs. Roberts’ commissions as ‘salary’ is not merely factually incorrect; it is incorrect as a matter of law,” Gershman wrote. “The legal distinction between these terms is clear, undisputed, and legally material. If the Chief Justice’s inaccurate financial disclosures were inadvertent, presumably he should file corrected and amended disclosures.”

Don’t hold your breath waiting for those amended and corrected disclosures.

According to the whistleblower, Jane Roberts received $353,625 for a single placement at WilmerHale in 2013 — and then from 2013-2017, WilmerHale argued 27 cases before the Supreme Court, more than any other law firm. In 2018, Chief Justice Roberts voted to overrule a lower court decision that found a WilmerHale client liable for punitive damages. As Professor Gershman put it: “a reasonable person would want to know that the law firm on the other side of a legal dispute had recently paid the judge’s household over $350,000.”¹

Reading the Business Insider report, two things came immediately to mind. First, as Take Back The Court² president Sarah Lipton-Lubet put it: “No wonder John Roberts didn't want to testify about Supreme Court ethics!” The other was the report earlier this week that Justice Neil Gorsuch failed to disclose his sale of real estate to the head of a law firm that has been involved in at least 22 cases before the Court during Gorsuch’s tenure.

Coming so quickly on the heels of the Gorsuch revelation, the Roberts report reminded me of AFL-CIO General Counsel Craig Becker’s 2021 testimony to the Presidential Commission on the Supreme Court of the United States, in which Becker detailed the chummy relationship between a small number of elite law firms and the Supreme Court.

There is a growing perception among parties before the Court and – perhaps even more so – among parties wishing to be heard by the Court, that they must retain one of a small number of lawyers who are almost exclusively employed by corporate law firms, in order to receive a fair hearing from the Court. Here, I colloquially refer to this small group of lawyers as the “Supreme Court bar.”

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Even more troubling, several Justices openly described how they relied on these lawyers as gate keepers and looked more favorably on petitions in cases in which these lawyers were involved. “They speak glowingly of the repeat performer,” Reuters reported. Former Justice Kennedy, for example, stated, “They basically are just a step ahead of us in identifying the cases that we’ll take a look at.” Interviews with former clerks also “confirm the obvious: the clerks pay special attention to the petitions filed by prominent Supreme Court advocates.”

Noting that “just twelve firms were involved in one-third of the cases” the Supreme Court heard between 2004 and 2012, Becker explained that the close relationship between these firms and the Court advantages corporate interests who have a near monopoly on the services of these firms:

The perception that the “Supreme Court bar” has a special relationship with the Justices, the belief that its members are at ease and more effective in argument before the Court, and – above all – the reality that they are indeed more successful in getting cases heard by the Court, have increasingly led parties who can afford the cost to retain such counsel in cases the parties want heard by the Court and in cases already before the Court on the merits.

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Yet the members of the “Supreme Court bar” typically cannot or will not represent parties with interests adverse to their corporate clients. Professor Richard Lazarus, a former Director of the Georgetown Supreme Court Institute, explained that there are “areas of law in which the vast majority of the private Supreme Court Bar regularly declines to serve as . . . counsel because of its concern that doing so will upset some of its most financially important business clients. For that reason, almost all of the practices refuse to provide such help to plaintiffs involved in employment discrimination” and similar matters. The Reuters story quoted one member of the bar acknowledging, “Working for corporate clients is the bread and butter of our practice. As a large national firm, we are generally conflicted from representing individuals and advocacy groups in litigation against corporations. They are typically suing our clients or prospective clients.” “We do not take cases that could make negative law for our clients,” said another member of the bar. “The last thing we want to do,” said yet another, “is to make one of our long-standing clients unhappy with what we do.”

So, put it all together and what do we have? A small group of elite law firms enjoy extraordinary access to the Supreme Court, which pays “special attention” to the cases they are involved in. These firms take predominantly corporate clients, and refuse to work on behalf of individuals or advocacy groups that challenge corporate power.³ And these firms are involved in an alarming number of undisclosed financial arrangements that have netted millions of dollars for Supreme Court Justices and their spouses.⁴

Let’s give Jane Roberts the last word, from Business Insider:

In sworn testimony taken in 2015, included as part of Price’s whistleblower disclosure and published here by Insider, Roberts gave a detailed account of the mechanics of her recruiting practice. Most of her business, she says, comes through referrals: “Successful people have successful friends.”

Yeah, that sounds right.

1. Note that because the vast majority of the sources of Jane Roberts’ $10 million haul are not publicly known, we have no way of knowing how many other similar — or worse — undisclosed conflicts there are. But it seems rather unlikely this is the only such case.

2. Disclosure: I am a consultant & advisor to Take Back The Court.

3. Probably just a coincidence that the right-wing Supreme Court has been particularly favorable towards corporate America and hostile to working people.

4. Probably just a coincidence that John Roberts refuses to testify to the Senate Judiciary Committee about the Supreme Court’s … well, I was going to say “about the Supreme Court’s ethics,” but it doesn’t really seem like they have any.