Hayden Thorne breaks down the latest Clarence Thomas scandal and the problem of integrity in American politics
Comment: In March of last year, I wrote that the Supreme Court – at the time engulfed in scandal thanks to Justice Clarence Thomas’ lack of integrity and ethically-suspect behaviour – was in danger of causing itself a great deal of harm. More precisely, I described the US judiciary (but more specifically the Supreme Court) as morally bankrupt.
One year on, and the Court’s integrity is once again under serious question thanks to the behaviour of the very same Justice. Thomas is a staunch conservative, nominated to the Court by George H.W. Bush in 1991 and confirmed despite strong allegations of sexual harassment levelled by Anita Hill. He has consistently been the most conservative Justice for his whole tenure on the Court, including recently suggesting that he would vote to reconsider and probably overturn decisions establishing access to contraception, homosexual activity and same-sex marriage.
Latest scandal
The scandal of a year ago centred on Thomas’ wife, Ginni, and her connection to the January 6 Capitol insurrection and subsequent attempts at covering up the Trump administration’s role in those events. The latest scandal is much more serious and speaks much more directly to Clarence Thomas’ own character and fitness for office.
On April 6, ProPublica, an independent investigative journalism newsroom in the US, published a damning report into Thomas’ long history of accepting, without declaration, luxury holidays and retreats from real estate magnate and Republican super-donor Harlan Crow. These trips, including private jet flights, superyacht trips, luxury resorts and much more, easily tally into the millions of dollars over Thomas’ tenure on the Court. A 2019 trip alone would easily have exceed half a million US dollars if Thomas had been footing the bill. Leaving aside the blatant hypocrisy (Thomas claims to be a man of the people, coming from “regular stock”) Thomas’ actions run contrary to the letter of the law, and should offend any rational person’s sense of ethics.
In the wake of the Watergate scandal, legislation was passed that requires Supreme Court Justices to publicly report any gifts they receive, with an exception for “food, lodging, or entertainment received as personal hospitality”. Thomas released a brief statement claiming that “this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable”. Leaving aside Thomas’ morally questionable stance, by the letter of the law (something he is remarkably fond of, with a long-standing obsession over interpreting the Constitution exactly as it was written), he should have declared, at the very least, the private jet trips which cannot in any way be wrangled to fit the legislated exception.
Precedent
Thomas’ actions are unprecedented in American judicial politics. The sheer scale and duration of the gifts he has received far outweighs anything in the Court’s storied history. There is one judicial scandal, however, to which we might turn for guidance. In 1969, liberal Justice Abe Fortas, who had been on the Court since 1965 and had come very close to being made Chief Justice in 1968, was forced to resign from the Court based on his prior relationship with disgraced Wall Street financier Louis Wolfson.
It came to light that Fortas had, in 1966, accepted a $20,000 per year retainer from Wolfson in return for some unspecified advice, with the arrangement to run for the rest of Fortas’ life. In order to avoid any impropriety, Fortas returned the money that year and received no further payments. Wolfson was later convicted of improper stock dealings and perjury and obstruction of justice, though there is no suggestion Fortas had any connection to illegal dealings.
Notably, when Fortas’ connection to Wolfson was made public, political leaders from both sides of the divide called for his resignation, including a number of prominent Democrats despite knowing that if Fortas resigned it would give Nixon the chance to appoint a conservative replacement and shift the balance of power on the Court. In Senator Joseph Tydings’ words, “the confidence of our citizenry in the federal judiciary must be preserved” even if the cost of that preservation was a new conservative majority on the Court.
In the increasingly divided American politics of today, it is all but impossible to see the same attitude appear here. Indeed, the Republican Party has alternated between total radio silence and tacit support for Thomas, viewing it as a non-issue.
Analysis
There are four key takeaways here:
- The Supreme Court is a morally bankrupt institution, led by a Chief Justice and a group of supporters who appear to consider themselves above the law. The Court seems to view the disclosure rules as guidelines, rather than rules. The Court is subject to little-to-no legislative oversight and effectively has given itself the power to govern how it operates. While the Court has never expressly considered their own ethical responsibilities, in his 2011 end-of-year report, Chief Justice Roberts cast doubt on whether Congress had the power to subject Supreme Court justices to an ethical code of conduct.
- Clarence Thomas’ dismissal of these lavish expenses as nothing more than the hospitality of a close friend aren’t worth the paper they are printed on. Does anyone seriously believe that the hospitality would continue to flow if Thomas reversed his stance on political donations, gun control or abortion? Harlan Crow has bought and paid for the ear of a Justice in a position of abundant power. It should also not escape notice that, along with poor taste in friends, Crow himself is a dubious character with an apparent penchant for collecting Nazi memorabilia including paintings by Adolf Hitler and a signed copy of Mein Kampf. If that doesn’t concern anyone with an interest in American politics, I don’t know what will.
- An ethical or moral response would see both parties come together and, at a minimum, condemn Thomas’ behaviour as they did in the Fortas scandal. That the Republican Party refuses to do so speaks strongly to their own lack of standards and morality.
- Trust in the federal judiciary is at an all time low – but this scandal damages more than the Court – it demonstrates that American democracy is also at an exceptionally low ebb, with the rich and powerful able to buy influence as and when they need it.
For the sake of judicial integrity, and the integrity of the Court, Thomas simply must resign. It is clear that he won’t – and given the scandals of the past year and a bit, that should stand as a quite damning indictment of the character of one of the United States’ worst Justices.
