A rolling stone gathers no moss, but Rolling Stone sure publishes a lot of dross, at least when it ventures beyond its music portfolio. Most notably, a decade ago, Rolling Stone published, and then had to retract, a story about an alleged gang rape at a University of Virginia fraternity, and it ended up paying a seven-figure settlement to escape the fraternity’s defamation lawsuit. Much closer to home, but on a much more trivial level, a Rolling Stone reporter threatened a few months ago to make the ridiculous charge that I didn’t actually author a Supreme Court amicus brief that I submitted.
In what one lefty law professor has aptly condemned as “clickbait bulls**t,” that same Rolling Stone reporter has today published an article headlined “Amy Coney Barrrett’s Husband Is Representing Fox in a Lawsuit.” The article reports that Jesse Barrett, Justice Barrett’s husband, is representing Fox Corp. in a defamation lawsuit brought by a former city employee in Illinois.
The article states that Fox Corp. “owns the conservative cable news channel Fox News” and that “Fox News regularly covers matters at the Supreme Court and will surely continue to do so as the high court nears the end of its term.” I gather that the reader is supposed to fear that Fox News’s coverage of Justice Barrett’s role in Supreme Court cases might be biased by its retention of Jesse Barrett, but Rolling Stone doesn’t dare to utter that absurd proposition. Instead, Rolling Stone tries to make its story newsworthy by asserting that “[Jesse] Barrett’s work for Fox Corp. highlights one of ethics experts’ biggest complaints about the Supreme Court: Justices are not required to disclose their spouses’ clients, so the public has no way to track who is paying money directly to their families.”
Somehow these unnamed “ethics experts” never saw fit to voice this complaint over the corporate clients that Justice Ruth Bader Ginsburg’s husband Martin Ginsburg had in his elite tax practice with the law firm of Fried, Frank, Harris, Shriver & Jacobson up until his retirement in February 2009. No one was insisting back then that Martin Ginsburg should disclose his and his firm’s client list so that we could know whether Justice Ginsburg was taking part in cases that involved those clients. Indeed, there was not even any controversy over whether it was ethical for Justice Ginsburg to take part in cases in which Fried Frank lawyers were counsel for parties or amici and even in a case in which Fried Frank was the actual defendant. (See point 3 here for such cases.)
In “highlight[ing] one of ethics experts’ biggest complaints about the Supreme Court,” Rolling Stone might mislead many readers into thinking that lower-court judges have an obligation to disclose the client lists of their spouses and their spouses’ law firms. That is not the case. Supreme court justices and lower-court judges fill out the very same financial-disclosure report (Form AO 10) and are governed by the same regulations.
Section 455(b) of Title 28 specifies very narrow circumstances in which a justice (or judge) shall recuse because of a spouse’s activities: when the justice knows that the spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding,” or when the spouse is “a party to the proceeding, or an officer, director, or trustee of a party,” is “acting as a lawyer in the proceeding,” or is “likely to be a material witness in the proceeding.”
To be sure, section 455(a) also includes a general provision that a justice (or judge) “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” But section 455(b)’s narrow rules regarding spouses would seem to cut against expansively applying this general provision to spousal activity.
That’s certainly the conclusion that all the signatory justices—including John Paul Stevens and Ruth Bader Ginsburg—drew in their joint Statement of Recusal Policy in 1993. That statement addresses spouses (as well as “children or other relatives”) who are lawyers. The justices note that section 455(b)(5)(ii) does not require recusal when the law firm with which a spouse is affiliated is acting as legal counsel in the proceeding but the spouse has not participated (or is no longer participating) in the representation. Nor, they conclude, should section 455(a) be construed to “automatically” apply in such a situation, for such a rule “would render the limitation of §455(b)(5)(ii) to personal work, and to present representation, meaningless.” (Emphasis in original.)
Indeed, the committee that advises lower-court judges on their obligations under the Code of Conduct for United States Judges has issued an opinion (titled “Disqualification Based on Spouse’s Business Relationships”) that sets forth the “general proposition” that “the fact that the spouse or the spouse’s business has a business relationship with an entity that appears in an unrelated proceeding before the judge usually does not require the judge’s recusal.”