Justice Clarence Thomas sits during a group photo at the Supreme Court in Washington, on Friday, April 23, 2021.
Erin Schaff, POOL / Associated PressFun fact: Despite its role in upholding, rejecting or effectively rewriting laws that greatly impact our everyday lives – from issues of civil rights to health insurance to abortion – the U.S. Supreme Court is the only judicial body in the nation that isn’t governed by a code of ethics.
This absence of standards means there is essentially nothing stopping any of the court’s nine justices – who hold lifetime appointments – from, say, cavorting with a billionaire Republican megadonor on private jets and super yachts. Or accepting gifts worth thousands of dollars from that same billionaire. Or rubbing elbows with the leader of the so-called “architect” of the right-wing takeover of the federal judiciary at exclusive lakeside resorts.
In the case of Justice Clarence Thomas, these aren’t hypothetical scenarios. A recent ProPublica investigation revealed that Thomas, 74, has spent 20 years jet-setting and vacationing with Harlan Crow, a Dallas real estate businessman who has given $13 million in political donations to the Republican party and has “long supported efforts to move the judiciary to the right.” Over the course of their friendship, Crow has taken Thomas and his wife on lavish vacations to Indonesia and posh resorts in the Adirondacks. He has also showered Thomas with gifts, from a $19,000 Bible that belonged to Frederick Douglass to a portrait of the justice and his wife to a bronze statute of his eighth grade teacher.
That's quite an adoring bestie.
Federal law requires Supreme Court justices to report all gifts worth more than $415. The only thing possibly saving Thomas from a flagrant violation of the law is that until recently, the judicial branch had not clearly defined an exemption for gifts considered “personal hospitality.” The court's policymaking body last month revised the rules to require disclosure when judges are treated to stays at commercial properties, such as hotels, ski resorts or other private retreats owned by a company, rather than an individual. The changes also clarify that judges must report travel by private jet.
Still, ethics law experts agree that Thomas' failure to disclose private jet and yacht excursions, at minimum, violates judicial norms. After the Los Angeles Times reported in 2004 that Thomas accepted tens of thousands of dollars worth of gifts since joining the high court, he simply stopped disclosing them . Since 2004, Thomas has reported only two gifts: a bust of Douglass that Crow gave him, and an award from his alma mater Yale Law School. The years of lavish trips funded by Crow were kept on the hush. We can only speculate as to whether this lack of transparency was the result of Thomas' own interpretation of the disclosure rules or a purposeful obfuscation of impropriety. In a statement , Thomas said he sought guidance from "colleagues and others in the judiciary," and was advised that the "gifts and trips from close personal friends, who did not have business before the Court, was not reportable."
What, if anything, Crow received in return for his generosity is unclear. While the Supreme Court hears cases that impact the real estate industry, Crow’s firm has never had a case before the court. For his part, Crow said in a statement that he and his wife have been friends with Thomas and his wife Ginni since 1996 and that they “have never sought to influence Justice Thomas on any legal or political issue,” and that the hospitality extended to the Thomases “is no different from the hospitality we have extended to our many other dear friends.”
This benign characterization of their relationship strains credulity. The timing of their friendship – which, by Crow’s account, began five years after Thomas was sworn in as an associate justice – would be curious even if Crow wasn't a prominent GOP benefactor who has also donated millions of dollars to groups dedicated to conservative jurisprudence. Even the nature of Crow’s gifts go well beyond materialistic pursuits.
In 2011, Politico reported that Crow gave half a million dollars to a Tea Party group founded by Ginni Thomas, which also paid her a $120,000 salary. Ginni Thomas is, of course, a longtime conservative activist in Washington who sought to overturn President Trump’s election loss in 2020. Despite his wife's involvement, which included a barrage of text messages to Trump's chief of staff strategizing on how to subvert democracy, Thomas didn’t recuse himself from cases related to the 2020 election results.
Thomas' loose understanding of ethics seems to be reflective of the highest court's perception that rules don't apply to them, simply by virtue of their unique Constitutional role as the final authority on the law. Chief Justice John Roberts has said in the past that justices cannot be bound by all of the rules that apply to lower court judges and that he has "complete confidence in the capability of my colleagues to determine when recusal is warranted." Despite the court's long tradition of questionable personal conduct — who can forget Antonin Scalia duck hunting with Vice President Dick Cheney ? — we are supposed to believe that these nine men and women are unbiased umpires following the letter of the law, even as the court's decisions shatter judicial precedent and erode the public's trust.
Democrats on the Senate Judiciary Committee on Monday announced plans to hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards." We believe Congress should go even further.
Sen. Sheldon Whitehouse, a Rhode Island Democrat, introduced a bill in February that would, among other provisions, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts and mandate the creation of a binding code of ethics. Critics contend that such legislation would raise concerns about separation of powers, yet just last year Congress passed a bipartisan law sponsored by Texas Sen. John Cornyn requiring federal judges to submit periodic reports of securities transactions in line with other federal officials. There appears to at least be some agreement that judges should be subject to the same ethical standards as other public officials.
The highest court in the land should not have the lowest ethical standards. Judges should be paragons of integrity. The public has given the Supreme Court ample time to reach consensus on an internal ethical code of conduct. The revelations about Thomas show they haven't earned the trust to govern themselves.
