What does Clarence Thomas think about disclosures? Read his dissents.
What undermines faith in the Supreme Court even more than the drip-drip of stories about one of its member’s long and remunerative relationship with a wealthy conservative funder? The realization that one of its members places himself above the law he’s sworn to uphold.
Justice Clarence Thomas now claims that his repeated failures to properly file his financial disclosure forms — including 13 years of reporting his wife received no income when she was employed by prominent conservative organizations, failing to disclose the sale of his mother’s home and two other properties to billionaire Harlan Crow, Crow’s funding of his nephew’s private school tuition, and more than two decades of high-end luxury travel financed by Crow — resulted from misunderstandings, oversights, or bad advice.
It is of course worrying that one of the nine ultimate arbiters of law in this country was repeatedly stymied by a disclosure form that thousands of government employees must complete each year. But even more worrying is the justice’s apparent … forgetfulness? Or inconsistency? Because it turns out that in prior years, he had in fact reported his wife’s employment income, other financial transactions, and even, back in the 1990s, a trip on Crow’s private jet.
In another realm, Thomas has been far more consistent. For more than 20 years, he has argued again and again that — to quote his partial dissent in Citizens United, which lifted restrictions on corporations using shareholders’ money for their own political ends — “this Court should invalidate mandatory disclosure and reporting requirements.”
At times, it has been a lonely position. In 2010’s Doe v. Reed, for example, Thomas was the only justice to assert that a state law requiring disclosure of signatories to referenda petitions was unconstitutional. In McConnell v. FEC, he was alone in arguing against campaign finance disclosure provisions.
True, those cases involved the kind of disclosure that tells voters who is paying to persuade them, not the kind that assures the public that jurists charged with calling balls and strikes are not on the take. Thomas would probably point out that the kind of disclosure he objected to implicates “core political speech” most worthy of First Amendment protections — which is, again, different than disclosure designed to maintain the integrity of an institution that is supposed to stand apart from politics.
Yet while some justices do take a stricter view of ethics laws and norms in the context of judges, Thomas hasn’t been among them. In Caperton v. A. T. Massey Coal Co., for example, the court held that a state judge should have recused himself from a case involving someone who spent $3 million to place him on the bench. Thomas joined Chief Justice John Roberts’ dissent, which argued that recusal wasn’t necessary despite the appearance of bias. (Thomas may well depart from his colleagues’ views on the role of the judiciary. He is, after all, the justice most likely to favor overturning prior decisions; no judicial restraint here.)
Reading these cases, it’s hard not to conclude that the disclosures to which Thomas objects and the concerns about judicial integrity that he dismisses are of a kind with the omissions on his own financial reporting forms. He doesn’t think it is any of your business whom he socializes with, whom his wife works for, or who paid to renovate his mother’s house. And he is skeptical that an appeal to “judicial integrity” makes it your business.
Living by one’s own code may suit a selfstyled iconoclast, but it is a terrible look for a judge. At least as troubling as the very real laws that Thomas appears to have violated is the impression that he is acting out his dissents in his haphazard disclosures, privately rebelling against majority opinions with which he disagrees. It is not just a question of whether these omissions indicate bias (he has always been, after all, quite conservative); it is a question of whether those who serve on the court actually believe in the rule of law.
Unfortunately for those who think disclosures strengthen both institutions and the public’s faith in them, Thomas may no longer be in the wilderness. Twenty years ago, he was the only justice who would have rejected campaign finance disclosure laws. Two years ago, he joined five conservative additions to the court in striking down a state law that required nonprofits to reveal their largest donors to the state tax authority, opening the door to more dark money.
The public deserves a jurist who works within the laws we have, not the laws he wants. They deserve to know exactly who is funding ads, front groups, and litigation in the Supreme Court, not to mention who is supporting the justices’ lavish lifestyles. If there is any good to come of the current mess at the court, it will be to remind us that no one is above the law — and that sunlight remains the best disinfectant.