Column: Why are we stuck with a Supreme Court justice who doesn’t follow the law?
No sooner had Donald Trump finally been fingerprinted and booked than we Americans were reminded of that other V.I.P. scofflaw who, by his repeat offenses, has long mocked our national conceit that no person is above the law.
Supreme Court Justice Clarence Thomas.
Teflon Don has found that his own seeming shield against legal accountability isn’t impervious, and the former president likely faces more arraignments before long. Don’t, however, expect Thomas to similarly face indictment or impeachment after the latest revelations of his nose-thumbing at ethics and the law.
Opinion Columnist
Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
The nonprofit news organization ProPublica reported in separate exposes this month how Thomas has for years enjoyed luxe vacations at the expense of Texas billionaire and Republican mega-donor Harlan Crow, and how money actually changed hands in 2014 when a Crow company bought and refurbished Thomas family properties in rural Georgia where the justice’s mother still lives rent-free.
Crow told ProPublica that he has never tried to influence Thomas about legal or political issues, but he has contributed to conservative groups with a stake in such cases before the Supreme Court. For Thomas to accept his largess is at least unethical. What is possibly illegal is that Thomas repeatedly has failed to report such gifts and transactions in the annual financial disclosure reports required of federal officials by a 1978 law.
Perversely, it is because Thomas sits on the highest court that he’s all but unaccountable. Trump, once the most powerful person on the planet, lost the protection of a controversial Justice Department policy against indicting a sitting president when he left office. But the nine justices have their jobs for life. They judge, but are virtually unjudged.
ProPublica reported on Thomas’ undisclosed private jet and yacht trips, now it says he failed to disclose real estate transactions. Who will hold him accountable?
Thomas won’t even suffer shame, because he’s shown he has none. Which is why he won’t do what he should, and what one ethics-challenged justice did a half-century ago: resign.
That Thomas won’t follow the precedent of former Justice Abe Fortas is a reflection not only of his own flawed, chip-on-the-shoulder character, but also of the radically polarized politics today compared to Fortas’ time.
Fortas, an appointee and friend of President Lyndon B. Johnson, resigned in 1969 amid a scandal over disclosures of his financial ties to a convicted stock swindler. He maintained his innocence but said he was stepping down because the court’s reputation and effectiveness “are factors paramount to all others.” Fortas also sought to avoid likely impeachment in a Congress controlled by Johnson’s fellow Democrats; Thomas need not worry that Republicans who now run the House would ever impeach him, no matter how serious his infractions.
Today, public trust in the Supreme Court is the lowest since polling on the question began, yet Thomas isn’t nearly selfless enough to help restore it by resigning. For 31 years, he has seemed to nurse resentment over his contentious Senate confirmation, when he was credibly accused of sexual harassment. He’s not about to give up his seat in humiliation now — especially when the president who would fill it is a Democrat.
It is implausible that the justice has been unaware of his wife’s efforts to overturn Biden’s election.
What’s more, President Biden isn’t just any Democrat, but one whose election Thomas’ wife Ginni, a longtime right-wing activist, worked zealously to overturn. Despite her efforts, Thomas has ignored widespread calls to recuse himself — as a federal law arguably requires — from cases related to Trump and the Jan. 6, 2021, insurrection. He has three times voted in the Trump side’s favor in related cases.
That a justice would show such poor judgment in the matter of an existential threat to democracy is reason enough to favor Thomas’ departure from the court. But there’s all the rest.
The damning detail in the ProPublica blockbusters was new, but enterprising reporters have been zinging Thomas for his gifts-grifting and disclosure lapses at least since a 2004 investigative piece in The Times. After The Times first reported the Thomas-Crow connection back then, based on Thomas’ financial disclosures, what was Thomas’ response? To stop reporting the goodies.
The Times wrote then, “By law and tradition, the Supreme Court justices are exempted from many of the rules that govern lesser federal judges. Moreover, each of the justices is free to decide how the general ethics guidelines apply to them.”
Nothing’s changed. As Senate Republican Leader Mitch McConnell told reporters Tuesday, “I have total confidence in the chief justice of the United States to deal with these court internal issues.” Just as Chief Justice John G. Roberts Jr. has done before. Not.
Consider the value of what’s known of Crow’s direct and indirect generosity to Thomas over the years: millions of dollars for the Pin Point Heritage Museum in Thomas’ hometown of Pin Point, Ga.; $175,000 for a Pin Point library dedicated to Thomas and financing for another in Savannah; $500,000 for Ginni Thomas to start a far-right advocacy group; a $19,000 Bible that belonged to Frederick Douglass; private jet flights, an island-hopping yacht vacation worth hundreds of thousands of dollars and hospitality at California’s Bohemian Grove and at Crow properties in Texas and the Adirondacks.
A 2004 Los Angeles Times report disclosed gifts to Justice Thomas from rich Texan Harlan Crow. In response, Thomas stopped disclosing them.
Thomas also has had to amend his disclosure reports in years past to reflect unreported income for himself and his wife, but only after controversy. He once said he’d omitted nearly $700,000 that Ginni Thomas received from 2003 to 2007 from the conservative Heritage Foundation because of “a misunderstanding” of the 1978 disclosure law. A justice who’s the final word on the law doesn’t understand a law?
He was unchastened: Last year the New Yorker revealed that his wife’s company had received $200,000 from a right-wing, dark-money group for her consulting services at a time when the group was backing a Muslim ban case before the Supreme Court. Thomas did not disclose that payment either.
Thomas is certain to remain unchastened. He’s not only being defended but also hailed as a victim by a Republican Party that’s been called a cult of victimhood.
It’s a broken political system, and a broken court, that countenances such behavior and ethical blindness.
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