For decades, while posing as the Supreme Court’s everyman, Thomas has accepted lavish gifts, vacations, and private-jet flights, worth millions of dollars, from the Republican megadonor Harlan Crow. Then—in violation of federal law—he elected to conceal the financial relationship. We learned all of that thanks to the excellent reporting of Joshua Kaplan, Justin Elliott, and Alex Mierjeski of ProPublica. And we know they have Thomas dead to rights, because he hasn’t denied any of it. Rather, he has sought to defend his behavior with what you might generously call lawyerly deception. Here’s the key part of the public statement he issued in response to the revelations:
Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.
I added the emphasis to identify the points of deceit. Reading his statement, you might imagine that when Thomas became a justice, he wondered what to do about his dear and generous friend Harlan who, while very rich, and very conservative, had no particular interest in the composition of the federal bench or what considerations enter the minds of Supreme Court justices when they interpret and make law.
But that’s not so. Twenty-five years ago, Thomas had already been a justice for several years, which means he only befriended Crow after becoming one of the most powerful officeholders in the world. We don’t know when Thomas sought guidance from his similarly lawless colleagues, or which jurists he sought it from, but we know he voluntarily disclosed these gifts until the Los Angeles Times first began reporting on this improper relationship in 2004, at which point the disclosures stopped. Then note the past-tense voice when he claims Crow “did not have business before the court.” That is conspicuously not the same as saying he “did not and does not have business before the court,” or “has never had business before the court.” We don’t know, because Thomas left too much unsaid, but at best this means Crow had no business before the court in or around 2004 when Thomas and his buddies on the bench all agreed he didn’t have to follow any rules.
A truer statement and timeline would have left a much different impression: That years after he became a justice, a right-wing influence peddler with a fortune and recurring business before the court befriended and began spending vast sums of money on him; that he disclosed these gifts for several more years before the press got wind of it, at which point he went looking for affirmation that it was OK to keep accepting the gifts without disclosing them.
This would be intolerable even if it were Thomas’s first offense, but his offenses are serial. His entanglement with Crow alone has seen straight up cash flow into his wife Ginni’s pockets and his own. As I was writing this we learned that Crow secretly paid above market value to purchase property from Thomas, parcels that included Thomas’s parents house, where they continued to maintain residence while Crow covered their property taxes.
Meanwhile, Ginni resides at the center of a sprawling network of right-wing activists who encouraged and participated in efforts to overthrow the government after the 2020 election. Knowing that her communications about the attempted coup might end up in the hands of investigators and the public, Thomas cast the sole dissenting vote against requiring disclosure of Trump administration records to the House January 6 Committee. No recusal. Her involvement, and his desire to cover it up, at least hinted at his awareness of, or even complicity in, an effort to overturn American democracy. It all could easily have formed the basis of a tidy impeachment inquiry. Instead, then as now, Democrats in Congress let it be. They contented themselves with impotent calls for Thomas to recuse himself in future insurrection cases, and for a statutory code of ethics to bind the justices going forward.
Democrats subsequently lost the House, removing impeachment as an option altogether. But that hasn’t left them powerless. They still have a significant bully pulpit. They could use it to insist (ineffectively, perhaps, but at real cost to Thomas and the GOP) that Thomas resign; that his defenders are complicit in selling the Court to right-wing billionaires; that a court that tolerates this cozy style of bribery and deception can not be trusted with as much power as it has. And they could back that up with a credible threat to investigate Thomas’s conduct more deeply, including through the use of subpoena power.
A few righteous House Democrats have indeed called on Thomas to resign, but the ones best positioned to make this a painful problem for Thomas and Republicans have all ducked. As alluded to earlier, Senate Judiciary Committee Chairman Dick Durbin’s first instinct was to pass the buck to John Roberts—”Chief Justice Roberts needs to take the important first step here as the chief justice of the Supreme Court, to restore the integrity of that court with a thorough and credible investigation of what happened with Justice Thomas,” Durbin said—while vaguely promising to “act.” Initially, eight senators signed a letter to Roberts pressing him to relieve them of this hot potato. Subsequently, under wilting criticism, Democrats on the Judiciary Committee wrote to Roberts again, urging him (again) to investigate this issue himself but advising him that “the Senate Judiciary Committee will hold a hearing regarding the need to restore confidence in the Supreme Court’s ethical standards.” One hearing! On ‘Supreme Court Ethics!’ Maybe!
So, for now, a buck passed and a box checked.
Astonishing. As @JudiciaryDems wrote, the Chief Justice must investigate how such conduct could take place at the Court under his watch. And if the Court does not fix these clear abuses, Congress must. https://t.co/DQCP6Lylnm
We thus witnessed the perverse spectacle of Republicans feigning more outrage in defense of their poor, beleaguered friend Clarence Thomas, and his right to be corrupt, than Democrats directed at Thomas for the extent of his corruption. Republicans felt freer than they might have to treat Thomas as the victim of a smear campaign, because Democrats did not respond in proportion to the seriousness of the matter. Republicans would have you believe they’d be totally cool with George Soros sending Ketanji Brown Jackson to various beach resorts on his private planes (NB: they would lose every last ounce of their shit) because they didn’t have to worry about their opponents calling them liars, complicit in the corruption of the American government.
I’m not here to say the Republican approach of abusing its oversight powers and carpet bombing the discourse with sham investigations has been a huge winner. There is some value in choosing battles, and in being even vaguely competent. But I do admire one aspect of their ethos: The almost reflexive tic they’ve developed to call the things and people they don’t like “corrupt” and promise accountability. It is impossible to imagine Jim Jordan running interference for Donald Trump by, say, calling on the New York State Bar Association to censure Alvin Bragg; it is impossible to imagine Republicans trying to intimidate corporations and entities that don’t toe the right-wing line by petitioning various uninterested regulatory boards and calling it a day. They run straight at their enemies. It is, sadly, almost as hard to imagine Dick Durbin referring Clarence Thomas to the FBI or IRS for violating federal law, or issuing him a subpoena and promising to enforce it expeditiously.
Sadly, I agree. Nothing is going to happen to Thomas. They are just waiting for him to die. That’s how we deal with corrupt Supreme Court Justices and it’s one of the best arguments for term limits.