Clarence Thomas scandal points to need for ethics reform
Long before US Supreme Court Justice Clarence Thomas was outed by ProPublica for his high-flying, ethically challenged relationship with a billionaire Republican donor, the nation’s highest court and its chief justice knew it had a problem.
For years, the justices have been able to stave off congressional intrusion into their ethical rules — or lack thereof — by raising high the separation of powers banner, an admittedly significant constitutional issue. The diplomatic dance has at least resulted in the entire federal judiciary, including the Supreme
Court, being subject to financial disclosure rules — rules that allow the public and the press (albeit with a good deal of effort) to double-check on whether judges failed to disqualify themselves from cases in which they might have a financial interest.
But the recent disclosures about Thomas — his trips on Harlan Crow’s private jet, his nine days of island-hopping aboard Crow’s superyacht, a trip to the infamous and very private Bohemian Grove, none of which were reported on his financial disclosure statements — lay bare the giant ethical loophole the Supreme Court has managed to carve out for itself. On Thursday, ProPublica reported that Crow bought real estate in South Carolina from Thomas in 2014, a transaction the justice did not report.
The question remains what, if anything, will Chief Justice John Roberts, who purports to care greatly about the reputation of the court he leads, do about it?
And can the Judicial Conference, which Roberts heads, step up and give the high court a clear — and therefore enforceable — code of ethics for the first time in its history?
Thomas has insisted that Harlan and Kathy Crow have been longtime friends and that “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.”
The issue of “personal hospitality” is hardly a new one for the high court. Thomas’s relationship and travel with Crow drew public attention back in 2011. Supreme Court Justice Antonin Scalia’s hunting trips weren’t reported on his disclosure forms but were duly noted in press reports, including the 2016 trip to the West Texas hunting resort of Cibolo Creek Ranch at which he died after traveling there on a private plane with a prominent Washington attorney.
But it wasn’t until just last month that a committee of the Judicial Conference moved to close the “personal hospitality” loophole, disclosing the change in a letter in response to inquiries from Senator Sheldon Whitehouse of Rhode Island, chair of the Judiciary Committee’s subcommittee overseeing the federal courts.
The technical revisions to the regulations still exempt a stay at the personal residence or vacation home of a friend but would require disclosure of travel by private jet or stays at commercial properties such as, well, a hunting lodge or resort.
In his statement issued in the wake of the ProPublica disclosures, Thomas referenced the “new guidance,” adding, “It is, of course, my intent to follow this guidance in the future.”
Thomas — along with this wife, Ginni (whose Tea Party organization, Liberty Central, received a half-million dollars from Crow) — has proven himself an embarrassment to the court and its credibility at a time when public trust has already hit new lows.
A Gallup poll taken last summer — before the court overturned the 50-year-old Roe v. Wade abortion decision — showed public confidence in the court was at its lowest point in 50 years — with only 25 percent of adults saying they had “a great deal” or “quite a lot” of confidence in the US Supreme Court, compared to 36 percent one year earlier.
Most of the federal judiciary falls under a perfectly serviceable code of ethics with the requisite dos and don’ts one would expect of an independent judiciary. It includes a mandate to “refrain from political activity” and comply with restrictions on and disclosure of gifts — a provision that also applies to members of a judge’s immediate family.
But the nine justices of the Supreme Court don’t come under the code — a practice Roberts defended in his 2011 annual report, in the wake of the first Thomas scandal, when Thomas failed to report his wife’s salary and employment by the conservative Heritage Foundation. Roberts spent nearly all of that report attempting to justify the fact that ethically speaking the court was a law unto itself.
He noted that justices “consult” the code but added, “They may also seek advice from the Court’s Legal Office, from the Judicial Conference’s Committee on Codes of Conduct, and from their colleagues.
“For that reason, the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance,” he added.
But that was more than a decade ago. And a new era surely demands new standards.
The American Bar Association at its annual meeting in February urged the court to adopt a code of ethics that would be binding on the justices, with very good reason.
“If the legitimacy of the Court is diminished, the legitimacy of all our courts and our entire judicial system is imperiled,” the ABA resolution said.
This Thomas scandal may eventually fade from the headlines, but the need to restore the court’s reputation, to provide evidence that its nine chosen-for-life members can abide by the same rules that apply to their own judicial colleagues, isn’t going away.
If Roberts truly wants to restore public trust in the Supreme Court, he will lead the reform effort from atop his perch on the hitherto quiescent Judicial Conference — a body whose members ironically all fall under the system’s code of ethics. The reputation of the court demands nothing less.
This Thomas scandal may eventually fade from the headlines, but the need to restore the court’s reputation, to provide evidence that its nine chosen-for-life members can abide by the same rules that apply to their own judicial colleagues, isn’t going away.