One would hope we could have consensus that it is ethically suboptimal for Clarence Thomas’s standard of living to rely on remaining in the good graces of a Republican donor. Alas, this premise remains bitterly contested. Two weeks after ProPublica kicked off the latest round of investigations into Thomas’s sprawling web of undisclosed favors, the Republicans refuse to concede that anything about this situation concerns them.
Indeed, the only problem Republicans see about the fact that Thomas can only maintain the lifestyle to which he has grown accustomed as long as Republican donor feels like extending his generosity is that we even know about it at all.
“The left’s assault on the Supreme Court is continuing, and the latest front is the news that Justice Clarence Thomas has a rich friend who has hosted the justice on his private plane, his yacht, and his vacation resort,” editorialized the Wall Street Journal. “They’re so desperate to defame Justice Thomas that they’re willing to attack his longtime friend, Harlan Crow,” complains Senator Mike Lee. “Make no mistake: This is defamation.”
Given that Thomas has repeatedly been forced to revise his financial disclosures, his defenders can’t know with any confidence what behavior they are even defending. The largest source of conflict is the activities of his wife, a ubiquitous right-wing activist who was deeply involved in behind-the-scenes efforts to overturn the 2020 election result and hand Donald Trump an unelected second term.
Republicans have waved away this entire category of conflicts by pointing to the official denials by both Clarence and Ginni that the couple ever discusses their work together. “Unfortunately for Justice Thomas’s critics, however, Mrs. Thomas informed the House Select Committee to Investigate the January 6th Attack on the United States Capitol that she never discussed any activities surrounding the 2020 election with her husband, and the committee found no reason to conclude otherwise,” insists Thomas hagiographer Scott Douglas Gerber.
There are several reasons to doubt this official denial. One is that Clarence Thomas once depicted their beliefs and career work as inseparable. (“We are equally yoked, and we love being with each other because we love the same things. We believe in the same things.”) Another is that John Eastman, a conservative lawyer who worked with Ginni Thomas to undermine the election result, casually revealed an awareness of internal Supreme Court deliberations in contemporaneous messages. (“So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway,” he wrote in December 2020.) The third is that Thomas has repeatedly misled the public about his private life, including by portraying his vacation habits as resolutely working class (“I prefer the United States, and I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that”) while omitting his taste for private flights to luxury resorts around the globe.
To the extent they have engaged at all with the allegations against Thomas, they have grounded their defense in the ambiguity of the Supreme Court’s disclosure requirements. ProPublica’s “claim that has gotten the most attention — that Justice Thomas ‘appears to have violated’ longstanding disclosure obligations by not reporting gifts of airplane travel — rests on a much more contested account of those obligations than ProPublica acknowledges,” argues conservative legal apparatchik Ed Whelan. Whelan does not outright say Thomas did not need to disclose his gifts from Crow, only that experts disagree on the subject.
The Journal, for its part, rushes past the legal-obligation question with this masterpiece of obfuscation: “But it seems clear that the Court’s rules at the time all of this happened did not require that gifts of personal hospitality be disclosed.” The passage rests on the phrase “seems clear,” a delightfully oxymoronic construction. If it only seems that way, then it isn’t clear at all, is it?
Left unstated here is whether the justice has any ethical duties beyond what the rules require. If it is true that Supreme Court justices are exempt from the reporting requirements faced by other judges, and self-policing is the only mechanism, then shouldn’t the public demand a high standard from them? And aren’t reporters doing a good thing by digging into their financial relationships? Conservatives don’t say.
The closest they come to admitting their actual position is when they admit they implicitly trust the Court’s Republican-appointed majority. “I have total confidence in the Chief Justice of the United States to deal with these court internal issues,” said Mitch McConnell this week. (“Internal issues” means nobody outside the Court has any business investigating or overseeing its behavior.)
Conservative law professor Ilya Shapiro was even more frank. “Does anyone doubt the sincerity of any justice?,” he pleaded, “Do you think any of them would vote differently on any issue bc of their friends are or which parties they get invited to? Agree or disagree, think an argument is strong or weak, do you really think any of them aren’t sincere?”
This argument would negate literally any ethical requirements at all. If justices are categorically immune to the corrupting effects of favors, why not let them go on the payroll of a political party? Or accept payment from litigants?
It is true that Thomas would never defy the wishes of the conservative movement, even if he had no financial interest in staying loyal. The problem is that the institution of the courts rests on at least the fiction that the judges are something other than automatons carrying out the desires of the politicians who appointed them. Thomas is just stripping off the pretense.
