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Clarence Thomas’s Fancy Trips

. . . and the need for a binding Supreme Court ethics code.
April 7, 2023
Clarence Thomas’s Fancy Trips
Associate Supreme Court Justice Clarence Thomas in October 2021. (Photo by Drew Angerer/Getty Images)

Clarence Thomas, the senior associate justice on the U.S. Supreme Court, said on Friday that he has “always sought to comply” with rules regarding the public disclosure of trips paid for by others, and that he would abide by the recently revised disclosure guidelines. His unusual statement, prompted by a new report revealing his long history of taking lavish trips bought and paid for by billionaire Republican megadonor Harlan Crow, demonstrates the need for a much more rigorous and enforceable ethics code for the nation’s highest court.

ProPublica reported on Thursday that Thomas has

vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and . . . typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The ProPublica investigators calculated that the value of a single nine-day trip to Indonesia in 2019 may have exceeded $500,000.

You might think that Thomas would be mandated to disclose these gifts—perhaps under the post-Watergate Ethics in Government Act or the disclosure filing instructions of the federal Administrative Office of the U.S. Courts, which stipulate that gifts aggregating more than $415 in value annually from any one source were generally required to be reported.

But there’s a loophole, at least a partial one—an exception for “personal hospitality of any individual.” In his statement Friday, Justice Thomas referred to the vacations as “personal hospitality from close personal friends, who did not have business before the Court.” Likewise, the real estate magnate Crow, in a statement of his own, said he’d extended “hospitality” to the Thomases “over the years.”

So there you have it. Justices must disclose gifts that exceed $415 except for $500,000 gifts of “hospitality” from individuals. But note, the hospitality must be “at the personal residence of that individual or . . . on property or facilities owned by that individual” (emphasis added).

(Can you just hear Crow’s invitation: “Clarence, how would you like to fly with me to Indonesia on one of my facilities?”)

Apparently, because to a textualist like Justice Thomas the language wasn’t clear enough, last month, new filing instructions from the Administrative Office of the Courts expressly stated the obvious: that free “transportation”—say, on a yacht or private jet—is more than “hospitality” and must be reported.

As for “hospitality” at one’s private property, the ProPublica article includes an image of a photorealistic painting of Thomas, Crow, and three other men—including Leonard Leo, the former Federalist Society leader now seeking to use a $1.6 billion war chest to reshape the country and its judiciary—enjoying drinks and cigars at Crow’s lakeside resort.

Nothing to see here: just a chummy elite of rich and powerful conservative activists chilling with a Supreme Court justice out of the view of us plebeians. And it’s hardly the first time such a thing has been reported; just a few months ago, for example, evangelical pastor Rob Schenck testified about how his organization for decades courted Court conservatives with fine dining and gifts of travel to gain access and influence.

The Court already faces a crisis of confidence in its integrity, a cornerstone of its legitimacy. In the wake of the ProPublica report, twenty-two Democratic members of Congress have called on Chief Justice John Roberts to launch a “swift, thorough, independent and transparent investigation” into the Thomas/Crow story. “Should the Supreme Court continue to refuse to act swiftly on these matters, we will continue to press Congress to act to restore accountability and ethics at the highest Court in the land,” they conclude.

And Senator Dick Durbin (D-Illinois), the chairman of the Judiciary Committee, promised hearings on an “enforceable code of conduct.”

A Senate investigation might not be the only one coming down the tracks. The question arises as to whether the law has been breached. The U.S. Code provides that “any justice . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The ProPublica article notes that “Crow and his firm have not had a case before the Supreme Court since Thomas joined it,” and in his statement, Crow said that “we have never asked about a pending or lower court case, and Justice Thomas has never discussed one, and we have never sought to influence Justice Thomas on any legal or political issue.”

But the ProPublica report also notes that the Supreme Court “periodically hears major cases that directly impact the real estate industry.” And given Crow’s many affiliations, there are other inevitable lines of connection. To pick just one recent example, Crow is on the boards of the Hoover Institution and the American Enterprise Institute, several of whose fellows signed on to an amicus brief in the currently pending Supreme Court challenge to President Joe Biden’s student loan forgiveness program. Regardless of whether this amounts to an actual conflict of interest, given the lavishness of Crow’s gifts, his connection to the amicus parties could reasonably raise questions about Justice Thomas’s impartiality.

And if past is prologue, it’s not hard to imagine what a vigilant investigation might reveal. In 2011, Politico reported that Crow had given half a million dollars to a partisan group founded by Ginni Thomas, Justice Thomas’s wife (and his fellow traveler on that Crow jet and yacht excursion to Indonesia). She earned a $120,000 salary there.

Fast-forward to March 28, 2023, when we learned that Ginni Thomas used a right-wing think tank to channel $600,000 of dark money to her current political operation. Was Crow among those donors? He and Ginni Thomas should both be directly asked about that.

In 1969, then-Associate Justice Abe Fortas resigned from the Court under threat of impeachment when it turned out that he was receiving a $20,000 annual retainer from Wall Street financier Louis Wolfson for unspecified advice. That was then. No one should be expecting Justice Thomas to resign or be impeached by this MAGA Republican House.

Even the new guidance from the Administrative Office of the U.S. Courts is toothless. Missing is any enforcement mechanism.

Chief Justice Roberts wrote in his 2021 year-end report that public trust in the Court’s work was “crucial,” and that the best way to protect it is for the judiciary to “manage its internal affairs.” With these new revelations, the Court should do just that by subjecting itself to an enforceable ethics code. That way, others won’t need to do for the Court what it can’t do for itself.

Dennis Aftergut

Dennis Aftergut, a former assistant U.S. attorney and former Supreme Court advocate, is currently of counsel to Lawyers Defending American Democracy.