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Barrett’s Husband Faces Career Quandary After Top Court Pick

Sept. 27, 2020, 2:01 PM

U.S. Supreme Court nominee Amy Coney Barrett’s husband, litigator and white collar criminal defense attorney Jesse Barrett, faces a unique career decision for lawyers whose spouses join the high court.

Jesse Barrett is a trial lawyer at SouthBank Legal in Indiana, where he regularly represents people charged with federal crimes. The former federal prosecutor also advises companies in government investigations and commercial litigation, according to his law firm bio.

Barrett didn’t immediately respond to inquiries about his future plans in the event that his wife is confirmed for a spot on the high court. Although Barrett and his firm have never tried a case before the court, according to a Bloomberg Law analysis, he wouldn’t be the first lawyer whose legal practice was put under the microscope by their newfound status as Supreme Court spouse.

President Donald Trump on Saturday announced he plans to nominate Amy Coney Barrett, a move likely to spark a whirlwind effort to confirm her in the little more than a month left before the November elections.

She was confirmed to a seat on the U.S. Court of Appeals for the Seventh Circuit in 2017. Much of the focus of the nomination process was on whether she would sit out abortion and capital punishment cases based on her well-stated moral opposition, but Barrett told the Senate Judiciary Committee that she would recuse herself from any cases in which her husband participated or in which she had a financial interest.

Having a justice’s spouse argue in front of the Supreme Court presents an obvious conflict of interest, said Michael Frisch, ethics counsel and an adjunct professor at Georgetown Law. Still, there are no formal rules delineating when a Supreme Court justice must recuse themselves from a case, and justices have ruled on issues that their spouses have declared a clear stance on or advocated around in the past, he said.

“There is no mechanism to enforce anybody else’s sense of what a judge ought to do in terms of a personal conscience recusal,” Frisch said. “There has been quite a debate historically that there ought to be, but there certainly isn’t.”

Supreme Spouses

Chief Justice John Roberts and the late Justice Ruth Bader Ginsburg are among those whose spouses largely bowed out of private practice as the judges climbed higher in the federal judiciary.

Jane Sullivan Roberts. who was a partner at Pillsbury when her husband was appointed to the U.S. Court of Appeals for the D.C. Circuit, now works a legal recruiter. Martin Ginsburg, a New York tax lawyer, had already moved into academia when his wife joined the D.C. Circuit. He later taught at Georgetown University and was also of counsel at Fried Frank.

John O’Connor was a prominent Phoenix-based lawyer at the law firm Fennemore Craig when his wife Sandra Day O’Connor became the first woman on the Supreme Court in 1981. He was also in line to be the firm’s managing partner, according to Evan Thomas’ Sandra Day O’Connor biography “First.”

Large law firms in Washington were reluctant to hire O’Connor, worrying over potential conflicts of interest and how his generalized corporate practice would fit into the clout-heavy district’s legal scene, according to Thomas.

O’Connor joined Miller & Chevalier but the corporate generalist struggled with the transition to a firm known for its tax expertise, Thomas wrote.

Even spouses who are not actively practicing law can pose conflict concerns in certain cases.

Supreme Court Justice Clarence Thomas’ wife, lawyer and lobbyist Virginia Thomas, is a vocal supporter of conservative causes. She has sparked controversy for her lobbying and advocacy activity on issues that could potentially come before the high court.

Frisch said that a spouse’s views will likely never disqualify a justice. But in the case of a lawyer-spouse appearing before a justice, it may raise questions about whether the justice can remain impartial, he said.

“When the appearance of partiality exists, then the administration of justice suffers,” Frisch said.

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com
Roy Strom in Chicago at rstrom@bloomberglaw.com
To contact the editor on this story: Rebekah Mintzer in New York at rmintzer@bloomberglaw.com

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