Analysis | The chief justice’s wife has every right to her legal career

But this would be the wrong fight for liberals to choose. Coincidentally, Mrs. Roberts has shown exemplary care to avoid even the appearance of impropriety. After her husband became Chief Justice, she transitioned from a career as a law firm partner to a job as a recruiter, a move that must be seen as a sacrifice in a sexist world where women still make up less than a quarter of key law firm partners .

As a recruiter, her standing policy since 2007 has been to avoid anything related to her husband and not to work with trial attorneys who actively advocate cases before the Supreme Court. The former colleague’s letter reportedly cites no evidence to the contrary, rather suggesting that she has worked with companies that have taken cases before the courts – as essentially all major companies do at some point.

The Chief Justice, for his part, has demonstrated the kind of judicial independence that puts you in a position to be widely criticized on both the left and the right. The idea that he would be swayed in a case by the fact that his wife makes a living helping law firms hire new people — and therefore gets paid by those firms — is as ludicrous as it gets. Even Roberts’ critics, liberal and conservative alike, recognize his deep commitment to protecting and preserving the Supreme Court’s institutional legitimacy. He is widely recognized as one of the epitomes of ethical behavior in today’s legal world, a sort of Republican version of Merrick Garland.

But the real problem lies deeper, in the implicit assumption that a judge’s husband should be some sort of Caesar’s wife, held to an impossible standard that would effectively oblige her to have no career at all.

Remember that the judges have all studied law and worked in legal environments. It should come as no surprise that several are married to lawyers. Those lawyers will naturally want to work in their chosen field. They shouldn’t have to quit because their husbands are going to the bank.

Also remember that the current suggestion of a potential conflict is being raised for the wife of a court and not the husband of a court. Somehow during Judge Ruth Bader Ginsburg’s long and distinguished legal career, no one seriously suggested that her husband, Marty Ginsburg, who was a renowned expert in tax law, give up his job at a major Washington law firm.

Beyond gender equality, there are other strong reasons for allowing judges’ spouses to remain in the legal workforce — subject to the principle that they should avoid actual conflict or the meaningful appearance of conflict.

To be clear, I’m not talking about the issue of a judge’s wife (call her, say, Ginni Thomas) denying the election results or communicating with the White House or a presidential campaign when election-related issues come before the Supreme Court. That separate issue is really about whether justice should be withheld, not about conflict of interest rules, which are about financial interests.

On the contrary, I am saying that the ordinary principles governing conflicts of interest should be applied wisely to the spouses of judges, not in an extreme way that calls into question their integrity without evidence or much reasoning.

Nor am I considering whether Congress should try to force a code of ethics on Supreme Court judges. Either way, the constitutionality of such a move would be judged by, you guessed it, Supreme Court justices.

My argument is rather that we should not control judges’ spouses in such a restrictive way that they cannot participate in their chosen professions as normal people. There is no point in violating the standards of attorney-client privilege by forcing Jesse Barrett to disclose his clients any more than so-called ethics watchdogs are doing Dr. Patrick Jackson should investigate to see if they have any issues in court. (They are the husbands of Judges Amy Coney Barrett and Ketanji Brown Jackson.)

There comes a point where demanding undue transparency from judges’ spouses can become a form of professional interference. If we don’t like the judges, we’re free to say so. Making life difficult for their spouses to serve a personal or political agenda is bad for the court and the country.

Isolated, contentious judges will not be better judges. The judges need professional and personal contacts to stay sane and understand the world as it is – as we all do.

We will make much better ethical judgments if we recognize that the judges are people with real lives. To paraphrase Shakespeare’s Richard II, they live on bread just like we do. They feel lack, taste sadness and need friends. The same goes for some of them with husbands who work.

The more we treat the judges as if they were a coterie of secluded monks and nuns, hidden from the real world, the more likely they are to lose sight of the consequences of the real world. Have we not already gone far enough in that direction? That’s not the court we want. It’s certainly not the court we need.

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This column does not necessarily reflect the views of the editors or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a law professor at Harvard University and most recently the author of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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