The ongoing debate over the personal ethics of justices on the US Supreme Court (SCOTUS) involves more than questions about the judgement of some members of the court. Granted, the cavalier manner in which some justices appear to have treated their responsibility--- to scrupulously protect the integrity and independence of the court--- is sufficient cause to worry about the viability of the American democracy. But equally disturbing is the obvious damage that has been inflicted on the court’s legitimacy as an integral player in our system of government as well as the unwillingness of other key players to act despite their own investment in the survival of our long standing republic.
Revelations about the failure of Associate Justice Clarence Thomas to report over 20 years of gifts and hospitality from real estate billionaire Harlan Crow ignited the current controversy. The nonprofit newsroom, ProPublica, published its findings April 6. In that report, ProPublica highlighted an “island-hopping” trip on Crow’s superyacht, apparently one of several, and frequent stays by Thomas at the wealthy GOP donor’s private resort in the Adirondacks.
While ProPublica admitted that neither Crow nor his firm has had a case before SCOTUS since Thomas joined it in 1991, the watchdog nonprofit described the Texan as “an influential figure in pro-business conservative politics,…(who) has spent millions on ideological efforts to shape the law and the judiciary.” It also cited an earlier report by the New York Times of Crow’s half million dollar gift to a Tea Party group established by Thomas’ wife Ginni. The group paid her an annual salary of $120,000.
Perhaps most troubling was the fact that Crow’s access to Thomas extended to anyone the real estate magnate chose to invite along. Among those who shared Crow’s hospitality with the justice on a July 2017 visit to the Adirondacks were executives from Verizon and PricewaterhouseCoopers, a leader of the American Enterprise Institute, and Leonard Leo, a central figure in several far right nonprofits as well as the Federalist Society.
Shortly after ProPublica’s initial report, Thomas issued a brief statement regarding his failure to disclose Crow’s largesse, describing the billionaire and his wife as “dearest friends” and admitting to “a number of family trips” over the years. Thomas also claimed that in not reporting such gifts he was following “guidance from my colleagues and others in the judiciary.” He has not made any additional statements, nor has he identified the “colleagues and others.”
But further disclosures quickly followed the initial ProPublica report.
A firm owned by Crow seems to have overpaid for the home of Thomas’ mother in 2014. The home, in Savannah, GA, and two vacant lots in the vicinity were purchased for $133,363 from three co-owners, Thomas, his mother and the family of Thomas’ late brother. According to the report published by ProPublica, significant renovations possibly worth $36,000 followed. Apparently, Thomas’ mother still lives in the home.
In another exposure, the Washington Post revealed that Thomas has been claiming in his financial disclosure documents receipt of hundreds of thousands of dollars in income from Ginger Holdings, LLC. The real estate firm launched by his wife and her family in 1982, went out of business in 2006. Since 2006, Thomas has reported receiving between $270,000 to $750,000 in rent from the firm.
ProPublica issued a subsequent story confirming that Thomas’ billionaire friend Crow had paid the tuition for the justice’s grandnephew to attend private boarding schools in Georgia and Virginia. “The exact total Crow paid for the youngster’s education remains unclear, but a rough estimate indicates the amount could have easily exceed $150,000. Thomas did not report the tuition payments from Crow, but he did disclose a gift of $5,000 for the youngster education from another friend on his disclosure form in 2002.
In addition, the Washington Post uncovered the involvement of the aforementioned Leonard Leo in channeling money to Ginni Thomas from nonprofits he controls. According to the Washington newspaper, in January 2012, Leo instructed GOP pollster Kellyanne Conway (yes, that Kellyanne Conway) to bill the Judicial Education Project (JEP) he advises and to pay Mrs. Thomas another $25,000. Conway was instructed to leave Mrs. Thomas’ name off billing paperwork.”
That same year, JEP filed a brief to SCOTUS in Shelby County v. Holder. Despite the fact that lower courts had defended the latest version of the Voting Rights Act, in that decision SCOTUS gutted key provisions of the law with Thomas part of the 5-4 majority.
Between 2014 and 2017, nonprofits associated with Leo collected more than $250 million in dark money donations used in part to support conservative policies and judges. Several of the groups hired the same conservative media relations firm, Creative Response Concepts (CRC), collectively paying it more than $10 million in 2016-2017. During that time the firm coordinated a month-long media campaign in support of Neil M. Gorsuch’s nomination to SCOTUS.
CRC also was involved in a $7 million media campaign to prevent Barack Obama from filling Scalia seat in 2016, launched by another Leo-associated nonprofit, Judicial Crisis Network.
It is not that other current members of SCOTUS have not received salaries, fees, gifts and/or travel from different individuals or organizations, but they appear to have made proper disclosures. The only known case where a justice appears to have been forced to resign involved Associate Justice Abe Fortas. Fortas left the court in May 1969, after having admitted to receiving $20,000 from a former client. He had returned the money.
The attitude of Chief Justice John G. Roberts, Jr., in this matter is cause for serious concern. When invited to attend a hearing of the US Senate Judiciary Committee last month, he declined. In his letter to Senator Richard J. Durbin, committee chair, Roberts demurred based on “separation of powers concerns and the importance of preserving judicial independence.”
He also attached a two and a half page document: “Statement on Ethics Principles and Practices” signed by all the member of SCOTUS. Ostensibly, this was intended to confirm their collective commitment to ethical behavior.
Roberts has questioned in the past the authority of Congress to impose rules on SCOTUS. Noting in his 2011 annual report that the Ethics in Government Act explicitly states that the law covers members of SCOTUS, the chief justice claimed that “the Court has never addressed whether Congress may impose those requirements on the Supreme Court.” He went on to say, “The justices nevertheless comply with those provisions.”
In a couple of his written opinions, Roberts has taken a skeptical view of the corrosive impact large sums of money might have on American politics. His concurring opinion in Citizens United v. FEC endorses the idea of that corporations have the right of unfettered political speech.
As author of the decision to vacate the bribery convictions of former Virginia Governor Robert McDonnell and McDonnell’s wife, Roberts berated the US Department of Justice for being too harsh in judging the defendants’ response to roughly $175,000 in gifts and loans from a nutraceutical entrepreneur seeking help with marketing his product. A Virginia jury had apparently viewed McDonnell’s actions as public corruption, but Roberts argued that no “official act” was committed.
Whether or not Congress has the authority to impose a more rigorous ethics regime on SCOTUS is probably moot. Republicans in Congress and in general have reacted as if the controversy is a Democratic political hitjob. The trivialization by US Senator John Kennedy summed up their rock solid opposition, when he admonished Associate Justice Barrett, “I hope you don’t have any overdue library books.” Justice Barrett, who joined the court in 2020 after a very speedy nomination process, has already signed a $2 million book contract with Penguin Random House.
With the US House under GOP controlled, any legislative effort is likely to fail.
Public opinion of SCOTUS reflects the partisan split in the Congress. Since the Dobbs v. Jackson ruling that overturned Roe v. Wade and withdrew the federal right to abortion, public confidence in the court has declined from 66 percent favorable in August 2020 to 48 percent favorable in April 2023.
The decline in Americans’ confidence in the fairness of our economic system is another danger sign. It has dropped from 71 percent unfavorable in July 2021 to 77 percent unfavorable in April 2023. Interestingly, the deepest plunge is among Republicans, falling from 55 percent unfavorable in July 2021 to 68 percent in April 2023.
Unresolved questions about the integrity of the nation’s highest court will only exacerbate the growing dissatisfaction.
Responding to inquiries from the Washington Post, Prof. Stephen Gillers, an expert on judicial ethics at New York University urged all three branches to act, adding, “The Supreme Court has been the glue that has held the republic together since 1790 with the Civil War the only interruption. We need the public to respect it even when it disagrees with it and to understand why it is important. Generally, the public has, but that respect is now in serious jeopardy, and other must do something to stop the free fall.”
https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus
https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/
https://www.washingtonpost.com/graphics/2019/investigations/leonard-leo-federalists-society-courts
https://www.judiciary.senate.gov/imo/media/doc/Letter%20to%20Chairman%20Durbin%2004.25.2023.pdf
https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf
https://supreme.justia.com/cases/federal/us/558/310/#tab-opinion-1963049
https://www.newyorker.com/news/amy-davidson/the-supreme-courts-bribery-blessing-mcdonnell-decision