Accountability Isn’t on the Docket
Clarence Thomas’s recent scandal has shined a light on corruption in the Supreme Court; what can be done to address these severe issues?
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Associate Justice of the Supreme Court Clarence Thomas has portrayed himself as a man of modesty. In Thomas’s 2020 documentary, Created Equal, he explains that he enjoys “normal” things, like Walmart parking lots and benches: “I come from regular stock, and I prefer that, I prefer being around that.” Justice Thomas’s childhood, dominated by poverty and chaos, certainly lends credibility to his so-called modesty.
As usual, with immensely powerful people, the truth deviates from the story. In reality, Thomas has received millions of dollars in various assets from Harlan Crow, a real estate titan and conservative super donor. The Justice has enjoyed, over the past 25 years, numerous free flights in Crow’s private jet, idyllic vacations across the world, weeks aboard Crow’s superyacht, all-expenses-paid stays at insanely expensive resorts, and of course, summer stays at Crow’s luxury resort in upstate New York. This lifestyle could not deviate more from modesty. Luckily for the Justice, that is only the beginning of Crow’s generosity. Crow’s kindness extends to Thomas’s own documentary, purchase and renovation of Thomas’s childhood home, paintings and statues of the Justice, and private school tuition for his son.
Not only has Justice Thomas refused to admit to these partakings, but he has also failed to disclose them—which he is legally required to do. Coming to his defense was Crow himself, who explained that the two are just really good friends who have a lot in common and enjoy each other’s company. And as a good friend, Crow indirectly gave the Justice millions of dollars. Furthermore, the friendship between Crow and Thomas is very old, as it began 25 years ago. Of course, Thomas has been on the Supreme Court for over 30 years.
The impact of this wealth on Thomas is impossible to discern. However, the effects of these deals are certainly tremendous. Crow is a deeply right-wing figure who consistently donates millions of dollars to conservative organizations and sits on the boards of conservative powerhouses, including the American Enterprise Institute and the Thomas Jefferson Foundation. Thomas is one of the most conservative Justices on the Supreme Court, and in the last court term, Thomas’s Martin-Quinn score,a metric used to gauge the ideology of a Justice based on their voting history, indicates that his recent jurisprudence was the most conservative out of any current Justice. Thomas often dissents on issues so extremely that he is only joined by Justice Alito in seven-to-two decisions. Recently, the Supreme Court allowed Mifepristone, a widely used abortion pill, to stay legal with only two Justices dissenting: Thomas and Alito. Justice Thomas is also notoriously against disclosure laws. In Doe v. Reed, in which Thomas was the sole dissenter, he argued that disclosure laws were unconstitutional. Again in a subset of Citizens United v. FEC, he argued against disclosure and ethical requirements. It’s no surprise that someone against ethical requirements would also be flagrantly violating them.
The complete disregard of ethical requirements placed upon the Supreme Court is by no means limited to this situation—or even to Justice Thomas. His wife was deeply involved in the events of January 6, 2021, in which a violent mob stormed the Capitol building, and she has established ties to the Trump presidency. Additionally, it has been revealed that she texted Mark Meadows, the former White House Chief of Staff, saying that the “Biden crime family” would be “living in barges off GITMO [Guantanamo Bay] to face military tribunals for sedition.” Even with such close ties, Justice Thomas failed to recuse himself from various related Supreme Court decisions and determinations, including Ward, et al. v. Thompson, Bates v. Trump, and Thompson v. Trump. Justice Alito failed to recuse in Valentine v. PNC Financial Services, et al., even though he owned shares in one of the companies. The foundation Americans for Prosperity spent millions of dollars to get Justice Barrett confirmed, and yet she failed to recuse herself from Americans for Prosperity Foundation v. Bonta. The liberals on the court are no exception. Justice Jackson failed to recuse from Lloyds Banking Group plc, et al. v. Berkshire Bank, et al. even though she held relevant financial assets, and Justice Breyer similarly failed to disclose from FERC v. EPSA. The previous violations listed are a small sample of the numerous infractions by Supreme Court Judges.
Responses from within the judicial branch are almost nonexistent. The retired, ostensibly liberal Justice Breyer disregarded the ethical weight of Justice Thomas’s dealings, saying that “he’s a man of integrity” and that he’s “never seen him do anything underhanded.” The executive and legislative branches—which are theoretically meant to check and balance the power of the judiciary—have also failed to take any meaningful action. The White House called out Justice Thomas’s actions but never took any substantial steps to hold anyone accountable. Similarly, the Senate judiciary committee has launched an investigation into the gifts but has not subpoenaed anyone on the court. Instead, they politely requested for Chief Justice Roberts to testify; he declined.
The media has failed to shed appropriate light on these blatant ethical violations. Even ProPublica’s bombshell reporting on Clarence Thomas and Harlan Crow elicited a meager public reaction. The New York Times has reported numerous times, with articles titled “Justice Thomas Says He Was Advised Lavish Gifts Did Not Need to Be Reported,” “Justice Thomas Failed to Report Real Estate Deal With Texas Billionaire,” and “Justice Thomas’s Friend Defends Failure to Disclose Tuition Payments by Harlan Crow.” Each of these titles, along with their articles, focus on the failure of Justice Thomas to disclose his gifts rather than the actual issue, that billionaires can easily access the most powerful people in the United States. Right-wing media, like the New York Post and Fox News, have painted the Justice’s actions as “perfectly reasonable” and the reporting by other news outlets as a “liberal smear campaign.” The numerous other violations of the ethical code have gone almost completely unreported.
The Supreme Court has supreme power over the American people. Abortion, gun rights, and unions, as well as unthinkable issues, like interracial marriage, access to contraception, and the separation between church and state, are all on the table. It is a necessity for American democracy that an institution with so much power is not rife with corruption. The power of the government is derived from the people, and only the people have the power to address this issue. To fix the Supreme Court, the public must care about the court, so the media must cover its major flaws, and the elected officials must take action to address the concerns of their constituents. There are a plethora of different ways to take action against the Court. Forcing the Justices to testify before the Senate judiciary committee would force them to confront their ethics publicly. Thomas should have explained to the American people the basis for his dealings. Congress also controls the budget for the Judiciary. If the Supreme Court is unwilling to create a real ethical code, Congress could severely limit funding to the court. This funding finances the Justices’ salaries and the salaries of their 36 clerks. Without it, the court would struggle to function. The court could also be packed by adding more justices, or term limits could be set. At the most extreme, Justices could be impeached with a majority vote in the House and then removed with a two-thirds vote in the Senate. But until a change is observed in the American people, such actions will never be taken by Congress, and the Supreme Court will continue to brazenly violate ethical requirements and engage in extreme corruption.