cases to avoid even the appearance of
misconduct. Justice Stephen Breyer re-
cuses himself from any case that has
been heard by his brother, Charles
Breyer, a federal judge in the Northern
District of California. “It’s about the
appearance of impropriety,” Charles
Breyer told me. “Laypeople would think
you would favor your brother over the
merits of the case. It’s [done] to make
people believe that the Supreme Court
is not influenced by relationships.” Jus-
tice Breyer also recused himself from a
case involving the Dana-Farber Can-
cer Institute, because his wife had pre-
viously worked there.
Charles Breyer told me that, although
Justices sometimes “might have a right
not to recuse, that doesn’t change the
question, which is: How does that af-
fect the appearance of impropriety?”
When I asked him whether the Justices
confront one another about potential
conflicts of interest, he said, “My guess
is that they don’t discuss it. They leave
it entirely up to the independent judg-
ment. They wouldn’t dare suggest re-
cusal—it’s part of the way they get along
with one another.”
In 2021, Justice Brett Kavanaugh
recused himself, without explanation,
from a case apparently related to a
family member. According to Gabe
Roth, the executive director of Fix the
Court, a nonprofit advocating for re-
forms to the federal judiciary, an am-
icus brief had been filed by a cosmet-
ics trade association that Kavanaugh’s
father used to run.
The spouses of other Justices have
taken steps to avoid creating conflicts
of interest in the first place. When Ruth
Bader Ginsburg joined the U.S. Court
of Appeals for the District of Colum-
bia Circuit, her husband, Martin Gins-
burg—then one of the country’s most
successful tax lawyers—left his law firm
and turned to teaching. After John Rob-
erts was nominated to be a Justice, his
wife, Jane Sullivan Roberts, retired from
practicing law and resigned from a lead-
ership role in Feminists for Life, an anti-
abortion group.
In 2004, Justice Antonin Scalia fa-
mously defended his decision to con-
tinue presiding over a case that involved
former Vice-President Dick Cheney
after it was revealed that the two men
had gone duck hunting together while
the case was in the Court’s docket. Sca-
lia argued, in essence, that Washington
is a small town where important people
tend to socialize. But in 2003 Scalia
recused himself in a case addressing
whether the mention of God in the
Pledge of Allegiance violated the Con-stitution’s separation of church and
state—because, several months before
oral arguments began, he’d given a speech
belittling the litigant’s arguments.
Ginni Thomas has complained that
she and her husband have received more
criticism than have two well-known
liberal jurists with politically active
spouses: Marjorie O. Rendell contin-
ued to serve on the appeals court in
Pennsylvania while her husband at the
time, Ed Rendell, served as the state’s
governor; Stephen Reinhardt, an ap-
peals-court judge in California, declined
to recuse himself from cases in which
the American Civil Liberties Union
was involved, even though his wife, Ra-
mona Ripston, led a branch of the group
in Southern California.
Ethics standards may be changing,
however. Cornelia T. L. Pillard, a judge
on the U.S. Court of Appeals for the
D.C. Circuit, currently handles a spou-
sal conflict of interest more rigorously.
She is married to David Cole, the na-
tional legal director for the A.C.L.U.,
and recuses herself from any case in
which the A.C.L.U. has been involved,
whether at a national or local level—
and regardless of whether her husband
worked on the case.
Roth, of Fix the Court, told me that
there is an evident need “for a clearer
and more exacting recusal standard at
the Supreme Court—especially now, as
it’s constantly being thrust into parti-
san battles, and as the public’s faith in
its impartiality is waning.”T
raditionally, judges have not been
particularly fastidious about po-
tential conflicts of interest connected
to amicus briefs. But that standard may
be changing, too. As the number of
partisan political issues facing the ju-
dicial branch has grown, so has the
number of these briefs. Many of them
are being filed by opaquely funded
dark-money groups, whose true finan-
cial sponsors are concealed, thus en-
abling invisible thumbs to press on the
scales of justice. Paul Collins, a polit-
ical scientist at the University of Mas-
sachusetts at Amherst, who has stud-
ied the use of amicus briefs, told me,
“There’s been an almost linear increase
in the number of them since the World
War Two era. Now it’s the rare case
that doesn’t have one.” The reason, he“Once upon a time, there was a middle-aged man who left his job
in corporate accounting to focus on his writing ...”