Is Clarence Thomas Crooked?
By stretching the rules, he damaged his reputation and the Court’s.
The journalists at ProPublica are proud of their scoop about Justice Clarence Thomas accepting scads of luxury gifts over the years from a billionaire pal, Harlan Crow. Many who never liked Thomas’s jurisprudence are piling on and declaring a four-alarm fire. Writing in the American Prospect, Max Moran intones that Thomas has “broken the law, knowingly and repeatedly, for two decades” and thus must face impeachment and removal from the bench. A representative of Accountable.US told the Guardian that “this is an unprecedented story of corruption at the highest levels, and those involved must be held accountable.” Court watcher Dahlia Lithwick and her Slate colleague Mark Joseph Stern argue that Justice Thomas violated the law “and it isn’t particularly close,” while the always measured and sober Alexandria Ocasio-Cortez called for impeachment to save the reputation of the Court, which she asserts, has become known for “rank corruption, erosion of democracy and the stripping of human rights.”
On the other side, those who approve of Thomas’s rulings, like the Wall Street Journal editorial board, mock the ProPublica reporting as so much argle bargle (to borrow a favorite phrase of the late Justice Antonin Scalia). In an editorial headlined “The Smearing of Clarence Thomas,” the Journal opines that
The left’s assault on the Supreme Court is continuing, and the latest front is the news that Justice Clarence Thomas has a rich friend who has hosted the Justice on his private plane, his yacht, and his vacation resort. That’s it. That’s the story. . . . It’s all ugly politics, but the left is furious it lost control of the Court, and it wants it back by whatever means possible.
There is little doubt that interpretations of Thomas’s ethics fall quite neatly into red and blue camps. For Dahlia Lithwick, the case isn’t even close. The Journal agrees, but in the reverse—nothing to see here except a generous friend and a personal relationship. If your guy does something, it’s unprecedented corruption. If my guy does it, it’s a trivial lapse. See: sex scandals of Bill Clinton and Donald Trump.
At the risk of “both sidesing” this story, the truth is probably in between. As Ed Whelan outlines in National Review, the ethics rules governing Supreme Court justices were quite lax until recently, when they were revised to specifically require disclosure of “free trips, air travel and other types of gifts, according to rules adopted earlier this month. Under the new rules, justices and other federal judges must report travel by private jet, as well as stays at commercial properties, such as hotels, resorts or hunting lodges.”
In fact, according to legal ethicist Stephan Gillers, the previous rules contained a huge loophole. While justices were required to report any gift worth more than $415.00, there was an exception for gifts that could be characterized as “personal hospitality.” Gillers was gratified that the new rules closed that loophole, explaining to the New York Times: “In my world of transparency and judicial ethics, what we had until now was little more than a joke. The rules were very lax and tolerated circumvention, and now we’ve taken a giant step away from that.” The new rules just went into effect on March 14.
Circumvention was exactly what Thomas did. He took advantage of imprecise language permitting justices to accept “personal hospitality” without reporting it. Shielded by that loophole, he accepted and did not disclose twenty years’ worth of extraordinarily lavish gifts including a nine-day cruise to Indonesia that included flying on Crow’s private jet there and back, a Bible once owned by Frederick Douglass said to be worth $19,000, a yearly summer stay at Crow’s private resort in the Adirondacks, a yacht cruise in New Zealand, and use of the private jet for trips to Dallas and other locations. Additionally, Crow contributed half a million dollars to Ginni Thomas’s Tea Party startup, Liberty Central, from which she took a six-figure salary.
That doesn’t add up to the sort of offense that merits impeachment, far less criminal charges, but it reeks and suggests a question: Why didn’t this give Thomas the willies? Most of us don’t know billionaires, far less billionaires who are eager to be our friends and benefactors, but we’ve all been in situations where we reject money or help because we don’t want to be beholden to someone, or worse, compromised. All of that luxury—the private jets, the yachts, the private resort with artificial waterfalls and top-tier chefs—it can turn your head. I certainly take the parties at their word that Crow didn’t have cases before the Court, and I think/hope that Thomas would recuse himself from such a case if one were to materialize.
But the reason Crow desires a friendship with Clarence Thomas is not principally for his hearty laugh or his storytelling. It’s because he’s a justice on the Supreme Court who rules in ways Crow finds congenial. Over time, all of that largesse can be a kind of soft coercion. If Thomas were ever tempted to stray from the doctrinaire views the two share, would the justice hesitate, if only unconsciously, contemplating the risk that he might lose access to the Bombardier Global 5000 and the private fishing guide?
Thomas knows this is a bad look. Normally loath to comment on negative news coverage, he took the rare step of issuing a statement: “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.”
He is sensitive about being seen enjoying the luxuries of the leisure class because he has crafted a very different public image. In a documentary about his life (paid for by Crow), he spoke of his favorite way to vacation—driving an RV around America.
I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that—I prefer being around that.
On reporting, Thomas followed the letter of the law, even if you find his interpretation strained. But he failed to live out the ideal that justices should avoid not just impropriety, but the appearance of impropriety. This hurts his reputation, but also the standing of the Court at a time when trust in all institutions is sinking. It’s not a crisis, but it’s not good.