By Jessie Seigel / Washington, D.C.
The catalogue of Supreme Court Justice Clarence Thomas’s ethical improprieties—and likely legal malfeasance—are piling up. They include his refusal to recuse himself from cases in which his wife, Ginni Thomas has an interest, and his failure over decades to disclose and report the outrageously expensive gifts he received from right-wing billionaire Harlan Crow. Among his many disclosure failures are Thomas’s mother living rent-free in a house he sold to a Crow-owned corporation, and his reporting that his wife had no income when she had earned six figures from the conservative Heritage Foundation.
The nature of Clarence Thomas’s character was apparent at least as far back as 1981, when the Senate held his Supreme Court confirmation hearing. If the Senate had listened carefully to Anita Hill, who testified against him, they could have stopped the Justice’s corrupt career before it began. But they blew it.
Justice Thomas’s Appointment to the Supreme Court
President George H. W. Bush appointed Thomas—who had barely one year of judicial experience—to take the seat formerly occupied by the brilliant Justice Thurgood Marshall. The replacement of that legal giant, who was Black, with the inexperienced Thomas smacked of the Republican Party’s perversion of affirmative action--a tokenism that Clarence Thomas claims to hate. They picked a Black ultra-conservative, perhaps thinking that would make it harder for liberals to vote against him.
Then law professor Anita Hill came before the Senate Judiciary Committee, detailing allegations of sexual harassment by Thomas in the workplace.
Hill testified that while Thomas was her supervisor at two government agencies, he repeatedly asked her out, would not take no for an answer, and frequently talked to her about sex in graphic detail, describing pornography he’d seen of large-breasted women, women having sex with animals, group sex and rape scenes, as well as a reference to a pubic hair on a Coke can in his office.
Assuming an air of aggrieved outrage, Thomas called the hearing “a circus,” and “a national disgrace.” He claimed that Hill’s accusations were playing into stereotypes of Black men and whined that, “As a black American, as far as I am concerned, it is a high-tech lynching for uppity Blacks who in any way deign to think for themselves, to do for themselves, to have different ideas. It is a message that unless you kowtow to an old order…you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”
The Senate Committee committed a high-tech lynching all right—but it was of the equally Black but female Anita Hill, not Clarence Thomas. Or perhaps what the all-white, all-male committee did would better be compared to a burning-at-the-stake.
They forced Anita Hill to repeat over and over the most embarrassing parts of Thomas' alleged harassment. Republican Utah Senator Orrin Hatch asked whether she had read The Exorcist and although she said she had not, accused her of borrowing the pubic hair on a Coke can episode from that novel.
Did no one think to ask whether Clarence Thomas had read The Exorcist and borrowed his reference to the pubic hair from it?
To support the truth of her testimony, Hill even took and passed a lie-detector test. But to counter that, Republican Wyoming Senator Alan Simpson claimed that a delusional person could pass a polygraph test and read aloud a statement from an unidentified federal prosecutor suggesting that Hill could be delusional. Of course, Simpson failed to reveal that the federal prosecutor he quoted was a member of Judge Thomas’s defense team.
Despite a Democratic majority in the Senate, Thomas was confirmed by a vote of 52 to 48. Joe Biden was then a senator and chairman of the Judiciary Committee. Years later, he publicly apologized to Anita Hill for failing to protect her from his fellow Senators’ inquisition. But the damage was already done.
Justice Thomas’s Improprieties
Supreme Court Justice Clarence Thomas’s most recent ethical improprieties have been the stuff of headlines. He refused to recuse himself from cases related to the 2020 election despite the fact his wife, Ginni Thomas, an ally of former President Donald Trump, pushed for the overturning of President Biden’s win. Thomas was also the lone dissenter in the Court’s 8-1 decision that emails and text messages from Trump allies concerning the January 6 insurrection—including some from Thomas’ wife—must be turned over to the Congressional January 6 committee.
But Thomas’s numerous ethical improprieties have been ongoing over many decades.
Under the Ethics in Government Act, Justice Thomas is a “judicial officer” required to disclose travel and other gifts on his annual financial disclosure report, including the source, description, and value of all gifts that exceed the reporting threshold (currently $415).
The numerous expensive gifts from Thomas’s ultra-conservative billionaire benefactor Harlan Crow were far in excess of that reporting threshold. In its exemplary recent reportage, ProPublica reported that a single nine-day “island hopping” trip to Indonesia paid for by Crow--which included a flight on a private jet and a 162-foot superyacht, could have cost Thomas over $500,000 if he had paid for it himself.
In addition, according to Citizens for Responsibility & Ethics in Washington (CREW), Justice Thomas and his wife accepted vacations almost every year from Mr. Crow at Topridge, Crow’s 105-acre luxury resort in the Adirondacks. There, Thomas was surrounded by guests with an ideology and agenda and opportunities to influence him.
In addition, although Crow apparently does not have cases before the Court, he serves on the board of the American Enterprise Institute, which, according to its website, takes a strong interest in cases before the court.
According to ProPublica, Justice Thomas sold three Georgia properties in 2014 to a Texas company owned by Crow. These properties included his mother’s house, in which she continues to live rent free—another gift to Thomas and his family.
In addition, during a period when Ginni Thomas earned more than $686,000 from the conservative Heritage Foundation, Thomas checked a box on the required report labeled “none” for his wife’s income. He had done the same when she worked for conservative Hillsdale College.
Thomas has claimed he misunderstood the reporting forms. But this magnitude of irregularities and omissions amount to lying about them.
In defense of his handling of Harlan Crow’s gifts, Justice Thomas has claimed, “Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable.”
This argument is ludicrous. It is highly unlikely that any responsible judicial colleague would have considered this to be non-reportable hospitality. As the New York Times put it, personal hospitality among close friends “would be a nice meal at a friend’s home, not an invitation to travel the world like royalty on a plutocrat’s dime.” Furthermore, according to ProPublica, Crow befriended Thomas after he became a Justice. As the Times suggests, under those circumstances, “it is hard to believe that if Justice Thomas started voting like Justice Sonia Sotomayor, the friendship or the free island hopping would continue.”
Making the Court Ethical Again
There currently is no written code of ethics to which the Supreme Court must adhere. Historically, it has been deemed unnecessary because it was assumed that anyone appointed to such a high legal position would have ethics beyond reproach. In 1969, when the liberal Justice Abe Fortas appeared to fail that test, he was forced to resign.
Fortas had received $20,000 meant to be a yearly consulting fee from a foundation devoted to civil rights and religious freedom. But then the businessman who had started the foundation was convicted of securities violations.
Fortas had quit the foundation in 1966 and returned all the money he had accepted. But the Republicans in Congress nevertheless demanded his resignation. The Democrats joined in the demand even though President Richard Nixon, a Republican, would appoint his successor. No Mitch McConnells among those Democrats.
Fortas insisted he had done nothing wrong, but stepped down, stating in his resignation letter that “the welfare and the maximum effectiveness of the court to perform its critical role in our system of government are factors that are paramount to all others.”
Justice Abe Fortas understood that even the appearance of impropriety could harm the Court’s legitimacy. The Republicans in the current Congress and on the Supreme Court have no such scruples. If Clarence Thomas ever does resign, I’m sure it will be done with his usual chip on the shoulder complaint that he is being “lynched” by liberals.
But never mind Thomas’ likely whining. The Supreme Court’s ethical problems run deeper than one errant justice.
According to the New York Times, Justice Antonin Scalia took 258 subsidized trips from 2004 to 2014. Scalia died at a West Texas hunting lodge where he was staying for free. The lodge was owned by a businessman whose company had recently had a case before the Court.
Who knows what other justices are up to? And what exactly can be done to force Thomas or others on the court to behave in an ethical manner?
Supreme Court justices can be impeached by a majority of the House and be tried in the Senate. But considering that the Republicans control the House, impeachment is not likely.
The Senate Judiciary Committee’s chair, Illinois Democrat Dick Durban, has called on Chief Justice John Roberts to conduct an investigation of Thomas.
But Roberts has already demonstrated his ethical hypocrisy by starting an investigation of the inconvenient leak to the public of Alito’s draft decision eviscerating Roe v. Wade while ignoring Alito’s own improper advance leak of the earlier Hobby Lobby decision to interested individuals.
Senator Durbin has also said his committee will hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards.” The Senator has invited Roberts, or a justice whom Roberts designates, to testify at the Committee’s hearing. At this point, the invitation is for a voluntary appearance. In the absence of California Democratic Sen. Diane Feinstein (who is out indefinitely with shingles), Durbin does not have the needed committee majority to subpoena Roberts.
It is unlikely, in any event, that Chief Justice Roberts or Justice Thomas would willingly testify or comply with a subpoena. Non-compliance with a subpoena would result in a separation-of-powers battle—eventually to be decided by the Supreme Court itself. It is doubtful that this Court would limit its own power.
Congress could pass a law imposing a code of ethics on the Supreme Court. But even if one could obtain bipartisan support for it, given that the Supreme Court is the highest court in the land, it is unclear who could enforce it.
Democratic Rhode Island Sen. Sheldon Whitehouse has suggested that the U.S. Judicial Conference should refer Thomas to the Justice Department for potential violations of ethics laws.
A DOJ investigation would require an attorney general with fortitude. It is questionable whether Attorney General Merrick Garland, who slow-walked action on former President Trump’s malfeasance, will have the stomach to take on a Thomas investigation.
Given the current Republican Party’s love of power and lack of principle, the obstacles to establishing enforceable ethical rules for the Supreme Court are many and daunting. Perhaps a little McConnell-like maneuvering in the interest of justice is warranted. Maybe it’s time to add justices--to create a court majority that will agree to or itself institute ethical oversight.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.