Monday, June 20, 2022
Happy Father's Day to all the appellate dads out there--my husband included. We had a rather quiet Father's Day, as one of our junior associates has been under the weather. The lack of sleep associated with the sick junior associate has left me a bit uninspired when it comes to writing. Thankfully, Tony Mauro had a fascinating post on The Marble Palace Blog that is worth sharing and discussing.
Mauro's post, inspired by the recent controversy over Ginni Thomas and her role in former President Trump's efforts to overturn the 2020 election, looks at how "justices' family members--especially when they are lawyers--can raise concerns and recusal issues." Ginni Thomas is married to Justice Clarence Thomas.
According to Mauro, there are six sitting justices with attorneys in the family. Here is his list:
➤ 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.
Justices married to attorneys is nothing new. At the beginning of his post, Mauro notes the example of Abe Fortas whose wife Carolyn Agger was an attorney. Justices Ruth Bader Ginsburg and Sandra Day O'Connor were both married to attorneys.
Moving beyond the highest court in the land, I can think of several other prominent attorney couples. Current Arizona AG (and U.S. Senate candidate) Mark Brnovich's wife Susan Brnovich is a federal district court judge. Fourth Circuit Judge Diana Gribbon Motz is married to J. Frederick Motz, a Maryland District Court judge. Former Fourth Circuit Judge Allyson Duncan is married to Magistrate Judges William A. Webb. These are just a few examples, I know that there are countless more.
Mauro notes in his blog post that in 1993, seven members of the Supreme Court signed and publicized a recusal policy for when family members were part of a case. In relevant part, the policy stated "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." Of the justices who signed the policy, only Justice Thomas remains on the Court. Perhaps it is time for the Court to revisit this issue.