The Marble Palace Blog: When Justices Have Lawyers in the Family

Thank you for reading The Marble Palace Blog, which I hope will inform and surprise you about the Supreme Court of the United States. My name is Tony Mauro. I’ve covered the Supreme Court since 1979 and for ALM since 2000. I semiretired in 2019, but I am still fascinated by the high court. I’ll welcome any tips or suggestions for topics to write about. You can reach me at [email protected].

It was in 1969, and Supreme Court Justice Abe Fortas was in trouble, facing ethical problems that would eventually end his tenure. Nixon Attorney General John Mitchell tried ways to force Fortas to resign, and one of them was reviving an earlier grand jury exploring whether Fortas’s wife, Carolyn Agger, a prominent tax lawyer, had obstructed justice in a price-fixing case.

“Reopening the matter by Richard Nixon’s Justice Department was purely a means to torture Fortas,” former White House Counsel John Dean wrote in a 2001 book about William Rehnquist, who was part of the Nixon Justice Department at the time. Fortas soon resigned.

That episode was a dramatic illustration that justices’ family members—especially when they are lawyers—can raise concerns and recusal issues. The continuing controversy over Virginia Thomas’ role in Donald Trump’s efforts to overturn the 2020 election is the latest example, though her husband, Clarence Thomas, seems unworried about the tussle. Virginia Thomas received her J.D. from Creighton University.

Clarence Thomas similarly shrugged off what happened during the landmark Bush v. Gore case in 2001, when The New York Times reported that Virginia Thomas was working for the Heritage Foundation, with ties to the George W. Bush team. The late Gil Merritt, a Sixth Circuit federal judge, who was a friend of the Gore family, told the Times that “The spouse has obviously got a substantial interest that could be affected by the outcome. I think [Thomas] would be subject to some kind of investigation in the Senate.” Nothing transpired. Interestingly, Virginia Thomas spoke to the newspaper, telling the reporter that ”There is no conflict here,” adding that she rarely discussed matters before the Supreme Court with her husband.

Other episodes in familial complications for Supreme Court justices include a 2011 class action case titled Wal-Mart v. Dukes. Eugene Scalia, one of Justice Antonin Scalia’s sons, was a partner at Gibson, Dunn & Crutcher, where Walmart’s advocate in the case was also a partner. Eugene Scalia also had represented Walmart in the past. Activists said Scalia should recuse himself. At the request of the National Law Journal, Gibson Dunn made public a 2003 letter stating that income from the firm’s Supreme Court litigation “would be excluded from Eugene Scalia’s earnings on a permanent basis.”

In 2001, then-Chief Justice William Rehnquist stated publicly that he would continue to participate in a Microsoft antitrust case even though his son James Rehnquist was one of Microsoft’s lawyers in the case. The chief justice said he “considered at length” and “consulted with my colleagues” to determine whether he should disqualify himself. Rehnquist said “there is no reasonable basis to conclude that the interests of my son or his law firm will be substantially affected” by the case before the Supreme Court.”

But the biggest sign that justices grapple with these concerns came in 1993 when eight justices, led by Rehnquist, established and publicized a recusal policy for when lawyers are their family members.

Some excerpts: “We think it desirable to set forth what our recusal policy will be … when the covered lawyer is a partner in a firm appearing before us. … The provision of the recusal statute that deals specifically with a relative’s involvement as a lawyer in the case requires recusal only when the covered relative ‘[i]s acting as a lawyer in the proceeding.’ It is well established that this provision requires personal participation in the representation, and not just membership in the representing firm.

“We do not think it would serve the public interest to go beyond the requirements of the statute, and to recuse ourselves, out of an excess of caution, whenever a relative is a partner in the firm before us or acted as a lawyer at an earlier stage. Even one unnecessary recusal impairs the functioning of the Court. Absent some special factor, therefore, we will not recuse ourselves by reason of a relative’s participation as a lawyer in earlier stages of the case. … We shall recuse ourselves whenever, to our knowledge, a relative has been lead counsel below. “

The seven justices who signed the policy, all of whom had lawyers in their family, were Rehnquist, Scalia, John Paul Stevens, Thomas, Sandra Day O’Connor, Anthony Kennedy and Ruth Bader Ginsburg.

Among the current court, these justices have attorneys in the family. (Please let me know if I’ve missed any.)

➤ Chief Justice John Roberts Jr.’s wife, Jane, is a lawyer who is managing partner at Macrae, a legal recruiter company.

➤ Virginia Thomas, as mentioned, is a lawyer.

➤ Stephen Breyer’s brother, Charles, is a lawyer and federal judge, and Justice Breyer recuses himself when a case handled by his brother lands at the Supreme Court.

➤ Samuel Alito Jr.’s son, Philip, is a lawyer and line assistant U.S. attorney in the narcotics unit at the Eastern District of Virginia.

➤ Brett Kavanaugh’s parents, Everett and Martha, are both retired lawyers.

➤ Amy Coney Barrett’s husband, Jesse Barrett, is a partner at the Indiana law firm SouthBank Legal. Her sister Amanda Coney Williams is a lawyer, but it is not certain where she practices. Her father, Michael Coney, was a lawyer for Shell Oil. Justice Barrett did not recuse herself when she participated in a 2021 case in which Shell Oil was a party.