WASHINGTON — The Supreme Court has recently come under fire for a host of ethical issues revolving around gift disclosures, privately funded travel, forgiven loans and other financial conflicts of interest. But one such matter has flown under the radar: when former clerks argue cases before the very justices they once served.
The court announced Nov. 13 that it is adopting its first ever binding Code of Conduct, which several Congressmembers are already calling too “weak.” The justices said their desire to “dispel the misunderstanding” that Supreme Court justices “regard themselves as unrestricted by any ethics rules” prompted the decision.
Canon 3B of the new judicial ethics rules centers on defining reasonable grounds for recusals. But, as Congress and the court itself have discussed a binding code of ethics for years now, the relationship that former clerks have with the justices they served has yet to be seriously discussed. Guidelines for these relationships are not included in the new Code of Conduct.
Supreme Court clerkships are highly sought after, often filled by students who graduate at the top of their class from the nation’s premier law schools. Influential conservative groups, like the Alliance Defending Freedom (ADF), have also been successful in getting like-minded students into clerkships. Law firms then aggressively vie with one another to hire these individuals, promising them lucrative contracts immediately after they finish clerking.
NYU Professor of Law Emeritus Stephen Gillers, a legal ethics expert, has previously raised concerns about the hefty $400,000 bonuses and more than $200,000 salaries that some law firms routinely offer Supreme Court clerks.
Gillers has suggested that the firms spend on former clerks to acquire “inside information” about how justices are thinking at the time. He said he does not see a problem, however, with a clerk arguing before the court, as long as they comply with the two-year ban in the court’s rules prohibiting them from contributing to “any case pending before this court or in any case being considered for filing in this court.”
The law professor added that there are some exceptions that may warrant recusals after this two-year period, including strong bonds that develop throughout a clerkship.
“Sometimes clerks develop personal friendships with the justices they clerk for, and that friendship can continue for years,” Gillers said. “So there may be a need to recuse in that instance, depending upon the nature of the friendship, but not because of the fact of the clerkship in the first instance.”
The issue arose recently when the Supreme Court heard oral arguments on Murray v. UBS Securities, LLC on Oct. 10.
The plaintiff’s attorney, Easha Anand, clerked for Justice Sonia Sotomayor, while UBS’s counsel, Eugene Scalia, is the son of the late Justice Antonin Scalia.
The younger Scalia did not clerk for any current justices, but he intimately knew the justices who served with his late father. Justice Amy Coney Barrett clerked for the elder Scalia, while Justice Clarence Thomas, Justice Samuel Alito, Justice Elena Kagan, Chief Justice John Roberts and Justice Sotomayor all worked closely with him.
No justices recused themselves in this case despite various potential conflicts of interest.
Justices rarely recuse themselves from cases because of personal relationships to counsel. In a rare instance in early October, Thomas made headlines after he did recuse himself from a case related to the 2020 presidential election.
The case involved lawyer John Eastman, a former law clerk for Thomas. Eastman is best known for his role in advising former President Donald J. Trump in his concerted attempt to overturn the results of the 2020 presidential election. Indeed, the disgraced attorney produced a two-page memo outlining a six-step plan to keep Trump in office and thwart American democracy in the process.
Some legal experts have questioned whether Thomas should be involved in any cases related to the 2020 election after messages and texts have come to light showing the extent to which his wife, Ginni Thomas, was involved in attempts to overturn the results and participation in the lead-up to the insurrection on the United States Capitol on Jan. 6, 2021.
Outside of Eastman’s case, however, Thomas has not recused himself from legal questions or cases involving the last presidential election.
Rep. Dan Goldman, D-N.Y., a former federal prosecutor who served as lead counsel in the first Trump impeachment, has published several letters about judicial ethics, including one about Thomas’s recusal from the Eastman case.
Goldman said he was “happy” to see Thomas recuse himself and that it seems the justice has “accepted” that adjudicating this case would be a “conflict of interest.”
“He didn’t explain why and he didn’t recuse from prior January 6th cases, so I assume it has to do with his wife’s involvement either directly with Eastman or in the efforts to overturn the election,” Goldman said.
It is not out of the ordinary for justices to be hesitant to recuse themselves, even in the face of seemingly glaring conflicts of interest. According to a Bloomberg Law analysis published in February, justices recused themselves in a mere 3% of appeals since 2018.
The Bloomberg research also revealed that justices rarely provide explanations for recusals, which neither they nor the court are required to do under the court’s previous ethics standards.
A rule in the Code of Judicial Conduct requires judges to recuse themselves “in any proceeding in which the judge’s impartiality might reasonably be questioned.” The rule also lists “a personal bias or prejudice concerning a party or a party’s lawyer” as an example of an impartiality-threatening circumstance.
This code, however, does not directly apply to the Supreme Court, while it does to lower courts. The Supreme Court had been known to occasionally follow these ethics guidelines tacitly but was never legally bound by its requirements.
Indeed, before recently adopting a new Code of Conduct in November, Supreme Court justices were only explicitly bound by the federal recusal statute 28 USC §455, which states recusals are warranted when a judge “has a personal bias or prejudice concerning a party” in a case, but not to an attorney.
Some argue, however, that a former law clerk serving as “a party’s lawyer” constitutes a “personal bias,” whether it arises in a justice’s adjudication consciously or unconsciously.
David Luban, a Georgetown law professor and one of the world’s most cited legal ethics scholars, said the scale of a potential conflict of interest depends on the nature of said justice’s relationship to their former clerk.
“I don’t see that clerking for a justice implies that the justice has ‘a personal bias or prejudice’ in the advocate’s favor,” Luban said. “Maybe, maybe not. It depends on how friendly they got during the year’s clerkship, their post-clerkship relationship, not to mention how impressed the justice was with the clerk’s work.”
Luban emphasized that the federal recusal statute does not mention personal bias concerning “a party’s lawyer,” unless that lawyer is the justice’s spouse, himself or “a person within the third degree of relationship to either of them.”
To illustrate his stance, Luban looked to judges serving in thinly populated precincts.
“Judges at every level hear arguments from lawyers they know personally,” Luban said. “Think of judges in a small town. They probably know every lawyer in town and are social friends with half of them. That doesn’t mean the judge won’t rule against them in a trial. We expect that level of professionalism from judges.”
Goldman concurred, arguing “everyone understands” that judges and justices have a responsibility to “review the merits” of a case objectively. He added, however, that the Supreme Court is facing a “crisis of legitimacy” over other ethical questions. He specifically mentioned that Alito and Thomas have failed to properly disclose gifts from conservative billionaire donors and emphasized the threat these violations pose to the court’s integrity.
Goldman said he would like to see the court open “an independent investigative body” to probe conflicts of interest and a “robust ethics counsel” to ensure justices’ adherence to disclosure rules, preventing any justices from engaging in similar conduct.
“Even though these particular incidents of ethical violations and disclosure violations relate to conservative justices, it could very well happen to liberal justices, and [ethics reform] would apply equally to all justices,” Goldman said. “It should not be a partisan issue. It should be a good government issue.”
Sen. Elizabeth Warren, D-Mass., an influential law professor at Harvard University before running for office, said in an interview that she does not see an inherent conflict of interest with justices hearing arguments from former clerks.
Warren added, however, that if a financial tie between the two can be established, it would warrant a recusal.
“The legal system has long had judicial clerks who return then as full-fledged lawyers, and if that’s a problem, then so is every personal relationship—anyone you’ve met, anyone you’ve gotten to know,” Warren said. “For me, the big distinction is a financial interest, and that ought to be the place where we start and write a good, tough set of rules around that.”
In June, Warren and Rep. Pramila Jayapal, D-Wash., the chair of the House Progressive Caucus, reintroduced previous legislation aimed at reforming the judicial ethics standards.
Jayapal said Supreme Court ethics reform efforts have largely been focused on avoiding conflicts of interest. She said there need to be recusals in certain situations, but that those have “not happened in numerous cases.”
The bipartisan coalition of lawmakers pushing for ethics reform has faced numerous obstacles in achieving desired results, according to Jayapal.
“It’s just hard because we face similar obstacles on both sides, frankly, from members who don’t want to do some of those things,” Jayapal said. “They’ve got their own interests, and their own stock portfolios in some cases,” Jayapal said.