Again, Rules Just for the Powerful
Terry H. Schwadron
April 10, 2023
Once again, courtesy of journalists rather than those whose job it is to police such affairs, the private life decisions of Supreme Court Justice Clarence Thomas have left him in what looks like open violation of federal court ethics standards.
As a result, we’re seeing the public trust and backing of the Supreme Court as an institution fall another notch.
And, once again, because it involves Justice Thomas and his wife, an outspoken proponent of election denial, reactions to the reports are dripping in political sarcasm, layering the whole question with larger questions about our political divides.
The question, of course, is whether anyone, including the court itself, will act on any of it. There were murmurs last week among Democrats for some kind of legislation, and at least one call for impeachment, an impossible vote in a Republican-majority House.
The news from ProPublica, an independent journalistic group, is a straightforward comparison of what can be shown from documents and interviews to be two decades of luxury trips from a Dallas real estate investor against the lack of any required disclosure of the travel and vacation gifts.
Indeed, the businessman, Harlan Crow, acknowledges the largesse to his friends, Clarence and Ginni Thomas, though he sees nothing wrong with them. Crow’s firm has filed briefs before the court.
As outlined, Thomas has taken multiple, unreported jet trips, cruises, vacation stays both internationally, to an exclusive men’s retreat and private ranch in Texas, and to a private resort in the Adirondacks in New York State.
Federal judges have lifetime tenure, but other than on the Supreme Court, are required to avoid even the “appearance of impropriety.” Within the Supreme Court, Chief Justice John Roberts has written that justices must “consult” that code for guidance, but the Supremes govern themselves.
What the Rules Say
The rules for judicial ethics passed after Watergate. Justices, judges, members of Congress and federal officials are supposed to disclose most gifts, whether in cash or of other value. The trips and vacations would certainly apply, several ethics law experts told ProPublica.
In a statement released by the Supreme Court, the justice said that he had followed guidance from others at the court and that he believed he was not required to report the trips. He vowed to follow guidelines from the Judicial Conference of the United States, the policymaking body for other federal courts — guidelines that require reporting such trips. Apparently, a promise is sufficient, despite a record of noncompliance.
Right-leaning media sites have joined Republicans in defending the Thomas story as a political attack without substance because there is no specific evidence that the longtime friendship involved here resulted in seeking sway over a single case.
ProPublica uncovered the details of Thomas’ travel by examining flight records, internal documents distributed to Crow’s employees and interviews with dozens of people ranging from his superyacht’s staff to members of the secretive, all-male Bohemian Club in Texas to an Indonesian scuba diving instructor.
Crow met Thomas after he became a justice, according to the report, and they have become genuine friends. In 2011, The New York Times reported on Crow’s generosity toward the justice and Political revealed that Crow had given half a million dollars to a Tea Party group founded by Ginni Thomas, which also paid her a $120,000 salary. But the full scale of Crow’s benefactions had not been disclosed.
Over time, Thomas has said publicly that he prefers simple vacations like RV trailer stops to these reported luxurious trips, but the reports from ProPublica and in 2004 from The Los Angeles Times seem to contradict that.
Justice Thomas already has been targeted for ethics criticism for refusing to recuse himself from cases involving Donald Trump’s claims of election denial, despite his wife’s personal involvement in related work on overturning election results.
Thomas, perhaps the most conservative justice on a conservative Supreme Court bench, is known for his strict reading of the Constitution’ s written words. Perhaps he should be looking more closely at the written words of the judicial ethics code.
When the talk even from within the court is about a diminishing level of public trust, the lack of response to this kind of report takes on extra significance towards explaining why,
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