How Should We View the Clarence Thomas Revelations?

An investigation conducted by the nonprofit public interest group, ProPublica, found that for more than two decades, Supreme Court Justice Clarence Thomas has accepted gifts totaling millions of dollars from Harlan Crow, a Texas-based billionaire and real estate developer. In addition to accepting the gifts, Thomas failed to report receipt of the gifts on his annual financial disclosure form, a document required of all federal judges.

It gets worse. In 2004, the Los Angeles Times did an investigation into Thomas’ habit of accepting extravagant gifts from donors. Following the story published by the LA Times, Thomas’ annual financial disclosures indicated he had stopped accepting the gifts. But he hadn’t. Instead, he had just stopped reporting them.

The ProPublica story comes in the aftermath of another potential ethical violation committed by Thomas. In 2021, in the wake of the January 6 insurrection, Thomas failed to recuse himself from a case in which his own wife was involved.

Following the revelations from the ProPublica investigation, reactions were all too predictable. Democrats lashed out at Thomas’ behavior, some even calling for his impeachment. Republicans defended Thomas, impugning the motivations of “leftists” rather than actually defending the fact that Thomas had received millions of dollars worth of unreported gifts.

It’s the predictability of these reactions that I want to focus on. As a nation, our politics has become so divided that we no longer can agree on even the most obvious issues. Rather than looking at Thomas’ behavior from a right vs left perspective, I want to look at it from a right vs wrong perspective. It’s not always easy to distinguish right from wrong in politics. But in this case, I think distinguishing between the two is pretty clear-cut and easy.

Let’s start from the premise of what we should expect from a Supreme Court Justice. At a minimum, a Supreme Court Justice should be impartial, or at least as impartial as a human being can be. In the words of Chief Justice John Roberts, a Supreme Court Justice should just call balls and strikes. They should apply the law, not their political leanings or beliefs. They should be above reproach in their personal lives. They should not have any entanglements or personal interests that unduly cloud their judicial judgement or restrict their independence. Not only should they not have dealings that cloud their judgement, they shouldn’t have dealings that give the perception of bias or influence. To be certain, Supreme Court Justices, like anyone else, will live their lives as they see fit, with friends and acquaintances of their own choosing. However, because they are Supreme Court Justices, it is imperative that those relationships not influence—or give the perception of influencing—their legal decisions.

This is the minimum we should expect. After all, these Justices serve on the highest court in the land. Their decisions impact millions of people every day. We, through the Constitution, give Justices of the Supreme Court a tremendous amount of power. We trust them with carrying out one of the most important roles in our society. At least in theory, only the best of the best of the best of the nation’s attorneys ever rise to the level of Supreme Court Justice. It is an honor and a privilege to serve on the Court. Our expectation of those who serve should be high.

Oddly, although other federal judges are bound by an ethical code of conduct, Supreme Court Justices are not. In recent years, there has been a push to implement an ethical code of conduct for the Supreme Court, but the Justices have resisted, while simultaneously paying lip service to the imperative of ethical behavior. Congress has toyed with the idea of implementing an ethical code for the Supreme Court, but to date, they have failed to do so.

Even without a written code of ethics, does Justice Thomas’ behavior rise to the level of what we should expect from a Supreme Court Justice? Forget his politics. Forget his legal philosophies or decisions. Just focus on Justice Thomas’ behavior. Would such behavior be acceptable for the President, a Member of Congress, or a Senator? Would it be acceptable for any political appointee or bureaucrat? Would it be acceptable for your local dog catcher? I think the answer is obvious. We should not countenance the taking of expensive gifts by government officials, whether reported or not, particularly from someone in a position to influence the official’s behavior.

Former federal prosecutor and current President of Citizens for Responsibility and Ethics in Washington (CREW), Noah Bookbinder, made this point on Twitter after hearing Justice Thomas’ claim that Harlan Crow is simply a friend, and that he was counseled by his fellow Justices that there was no need to report the gifts:

“Have any of you had a friend pay for a vacation for you? How about a really expensive one? And then do it again? And again? It’s certainly not something that’s happened to me, and I don’t think it happens to regular people in the real world.

“For Justice Thomas to think that this is such a normal occurrence that it was not only okay for him to accept these fully paid vacations again and again, but that he didn’t even have to report it does not pass the smell test. Add to it that this is someone who apparently became a friend after Justice Thomas assumed a position of great influence and power, and it smells even worse.

“Most government employees are scrupulous in reporting gifts, usually much smaller and often from personal friends, as required on personal financial disclosure forms. This explanation does not comport with lived experience for most people in positions of responsibility.

“This shows why there needs to be an enforceable code of conduct for Supreme Court justices. But it is so far beyond what anyone should have thought acceptable that it also requires an investigation.”

I agree with Bookbinder’s thoughts. Justice Thomas’ behavior is so far beyond the pale that it should be obvious to any objective observer that it was wrong, unethical, potentially criminal, and worthy of further investigation. Opinion on the matter should not be determined by political beliefs or party affiliation.

As I said previously, this isn’t a matter of right vs left. It is a matter of right vs wrong. Any Justice, no matter his or her political beliefs or judicial philosophies, should be held to account for this type of behavior. Can’t we at least agree that any Supreme Court Justice or other government official that takes millions of dollars of gifts, particularly from someone in a position to influence their decisions, should be investigated, and if appropriate, punished? Or are we so divided that we can’t even agree on that simple premise?

ADDENDUM: There’s something about this story that I’m afraid I didn’t make clear enough. While it is true that Clarence Thomas didn’t report the gifts he received from billionaire Harlan Crow, the much more important part of the story is that Thomas accepted the gifts in the first place. Accepting the gifts is the unethical (and potentially illegal) action. Not reporting them is just proof of his intent to cover up his unethical (and potentially illegal) behavior.

ADDENDUM 2 — After I first published this post, ProPublica came out with another story detailing how Harlan Crow bought Clarence Thomas’ mother’s home in 2014, remodeled the whole thing, and has allowed Thomas’ mother to remain in the home rent-free ever since. At the same time, Crow bought two empty lots in the neighborhood from Thomas, and the went on to sell off the lots. Just as with the luxury travel Crow gifted Thomas, Thomas failed to report the transaction.

In response to the story, Crow claimed that he purchased the home with plans of turning it into a museum dedicated to telling Thomas’ story of going from a working-class neighborhood in Savannah to the highest court in the nation. Of course, that statement doesn’t explain: 1) why he immediately remodeled the home; 2) why he also bought the vacant lots only to sell them, or; 3) why he has allowed Thomas’ mother to remain in the home without paying rent.

With all of these revelations, and considering that Crow, who sits on the board of the American Enterprise Institute, a conservative think tank that often files amicus briefs with the Supreme Court, it seems clear that Thomas should be investigated by the court, by Congress, or by both. This should not be a partisan issue. Thomas’ ethical lapses and crimes (if any) are against the Court and the people of the United States. All Members of Congress, regardless of their party affiliation, should want to know the details of Thomas’ relationship with Crow. Sadly, while Democrats have called for an investigation, Republicans have been all too happy to dismiss the conservative jurist’s behavior.

ADDENDUM 3 — As you can probably tell, I feel strongly that the revelations in the ProPublica stories should be investigated, but others are calling for impeachment. Mehdi Hasan does a great job of laying out the case for impeachment, and compares it to a similar case against Abe Fortas, a liberal Supreme Court Justice.


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