Supreme Court Justice Clarence Thomas has been an ethical disaster at least since he was nominated to the Supreme Court in 1991. He achieved official disaster status when Anita Hill accused him of sexual harassment during his nomination. He’s maintained that status ever since by refusing to recuse himself from cases connected to the activities of his wife, Ginni Thomas, a far-right activist and influence peddler who was most recently seen supporting an attempt to overthrow the government. Now, thanks to a ProPublica report exposing his long-standing—yet previously undisclosed—vacation relationship with wealthy Republican donor Harlan Crow, Thomas will go down as one of the most publicly compromised justices in the history of the Supreme Court.
The ProPublica report paints a portrait of what is, at an absolute minimum, deeply unethical judicial behavior. Judges, especially those on the Supreme Court, should avoid even the appearance of impropriety, but Thomas is so cozy with Impropriety they need a chaperone.
Thomas has spent decades accepting lavish trips from the billionaire Crow. He’s made repeat trips on Crow’s private jet, taken cruises on Crow’s private yacht, and spent time at Crow’s private resort, all for free. Thomas did not disclose any of these freebies on his judicial disclosure form, as he would be legally required to for at least some of them. But because Supreme Court justices are not held to any statutory code of conduct, there’s no way to hold Thomas accountable other than through the constitutional means of impeachment. As long as Republicans control the House and half of the Senate, that will never happen.
The fact that Thomas won’t be punished shouldn’t detract from the turpitude of his behavior. It would be bad enough if these trips were merely high points in a bromance between two old friends, but Crow regularly invites other powerful and wealthy Republicans on these jaunts, and those people get to bend Thomas’s ear about whatever matter is on their minds. This access was, incredibly, memorialized in a painting Crow commissioned that showed Thomas surrounded by conservative legal power brokers like Leonard Leo and Mark Paoletta (who just happens to be the former chief counsel to Vice President Mike Pence). Imagine being so bold as to literally commission artwork of your secret cabal with a Supreme Court justice.
None of this is OK, but Republicans do not care. Thomas brings them victories. He believes guns should have more rights than pregnant people. He is a devout enemy of the LGBTQ community. He believes in “states’ rights” even when those states engage in discrimination against people of color and suppress their voting rights, and he is against affirmative action. The fact that Thomas happens to be Black and believes these things makes him all the more useful in the ongoing Republican attempts to set the law back to 1859: He’s the Black mascot Republicans eagerly parade about to excuse their racism.
That’s partially why the white-wing media has called in all hands to defend Thomas. The Federalist Society mouthpiece better known as the modern Wall Street Journal Editorial Board called ProPublica’s exposé a “smear,” as if it is somehow unfair to report on true things public officials are doing. The New York Times gave “both sides” space to noted torture supporter (and former Thomas law clerk) John Yoo, who offered this defense of his old boss: “If rich business people want to influence the Supreme Court, they are wasting their money if they think they can spend it on Justice Thomas…to who, in my view, money means the least and who is least impressed by all the pomp and circumstance of the court.”
Popular
"swipe left below to view more authors"Swipe →
It is, frankly, hilarious that conservatives are pushing this idea that Thomas is incorruptible as their defense to Thomas’s getting caught looking like he’s engaged in public corruption. It’s like me saying, “I wasn’t caught trying to take a cookie from the cookie jar, because everybody can see I’m overweight and my plan was to eat all of the cookies anyway.”
That said, I agree with the conservative premise that Thomas would gorge himself on the rights of others for free. Thomas does not have to be bribed to hate himself or American democracy. But the fact that Thomas believes this stuff for free is entirely beside the point. Bribes-for-Votes is not what I think the Republican undisclosed “gifts” are for. The conservatives hobnobbing with Thomas on island adventures are not paying to change his already-in-the-bag vote—but they might be paying to influence his opinions. That’s because, in the high-stakes world of Supreme Court opinion writing, even brief phrases or innocuous-sounding lines can have huge effects on the development of the law and legal outcomes. And Thomas has played a key role in seeding extremist conservative arguments in otherwise conventional (if wrong) conservative opinions.
For three decades, Thomas has set the extreme ideological edge of legal jurisprudence. In 1997 he wrote a concurring decision for a case called Prinz v. United States; the majority opinion said that state officials could not be forced to carry out background checks on potential gun owners, but Thomas went one further and inserted a line stating that the Second Amendment might confer a “personal” right to bear arms, a proposition that was a shot-across-the-judicial-bow at the time. Fast forward 11 years, and the Supreme Court did, in fact, invent a personal right to gun ownership in District of Columbia v. Heller.
Or look at US v. Lopez from 1995. In that case, Thomas invented an entirely new limiting principle for the Commerce Clause. At the time, it seemed like it came out of left field. But almost two decades later, in 2012, the Supreme Court adopted it in NFIB v. Sebelius, the Obamacare case. It’s not hard to understand why rich conservative donors might have an interest in limiting the government’s authority to regulate businesses under the Commerce Clause, or why they might pay good money to have the opportunity to tell Thomas about what judicial language would most help their interests.
Having a Supreme Court justice who will get on your boat and listen to your friends is useful, even if you can’t directly buy that justice’s vote. We know it’s useful, because the attempt to influence Supreme Court justices through in-person appeals happens to be the foundation of the entire concept of “oral arguments.”
There’s no objective need for oral arguments. All the parties in a case submit written briefs to the justices—briefs that the justices are more than capable of reading on their own. The justices are further capable of doing their own research and thinking about the law, and the government provides them with a team of clerks, paid for by taxpayers, to do additional research and help the judges come to their opinions. There’s no need for lawyers to stand up for an hour and answer questions: All of the legal information a justice could possibly need is in the documents.
And yet, we send some of our most highly trained (and well paid) lawyers to court in the hope of (wait for it) influencing the justices. Nobody (smart) goes into oral arguments really thinking they’re going to change a justice’s vote: The goal is to shape the eventual controlling opinion so that it is more favorable to your side of the argument. Maybe you get a justice to add mitigating language to their ruling; maybe you convince a justice to rule on one aspect of a case but not another. Maybe the justice has a legitimate question about your point of view, and you can answer it to their satisfaction and thus give them more confidence to rule your way. Influence is the stock and trade of appellate law.
In Thomas’s case, we’ll never know for certain what influence went down in the room with the Nazi memorabilia where it happened, but that’s a big part of the problem. Crow may not have bought Thomas’s vote, but he sure paid for hundreds of hours of face time, during which he and his friends could have made oral arguments directly to Thomas—arguments to which the other side wasn’t invited. If you’re a rich Republican friend of the Crows, you had an opportunity to plead your case to the justice. I didn’t. Women (based on the paintings) didn’t. Parents of children who were murdered at school because of Thomas’s interpretation of the Second Amendment didn’t. Crow doesn’t invite those parents to his private resort when the justice is around.
If a regular person wants to get half an hour of Justice Thomas’s time, we have to file a case, hope the Supreme Court grants certiorari, wait a couple of years, and hope Thomas (who is famously reticent at oral arguments) asks us a question. If a rich Republican wants to get that half hour, it would appear that all they have to do is call up Harlan Crow, hop on a jet, and bring some nice cigars.
It’s unethical. It would be punishable if Supreme Court justices deigned to follow the legal standards other public officials are subjected to. It seems OK to Republicans, because Republicans believe that having lots of money is a legitimate basis for wielding lots of legal influence and power.
Thomas released a statement arguing that he complied with the disclosure requirements as he understood them, based on the advice of “colleagues,” because of course the guy who claims to be sure about when the state can force a person to give birth against their will needs to phone a friend to figure out if his free plane rides count as a “gift.” He also said that he and Crow have been “dear friends” for “over 25 years.”
But Thomas has been on the Supreme Court for over 30 years. Their friendship may have blossomed into something genuine, but it started with access to power. Maybe that’s just another perk of being a billionaire. Most people who want to be buddies with a Supreme Court justice need to invest in those relationships in law school, before the justices ascend to power.
